Case Name: Caleb Schaupp, et al. v. Joline Faye Cohen, et al.
Case No.: 1-14-CV-269640

This wrongful death action arises from a motor vehicle accident in which decedent Michael Schaupp (“Michael”) sustained fatal injuries. (Complaint, ¶¶ 10, 12.) Plaintiffs Caleb Schaupp and Denise Schaupp (“Plaintiffs”) allege that defendant Joline Faye Cohen (“Cohen”) struck Michael’s motorcycle while departing from her workplace, the Lupin Lodge, in her Ford Explorer. (Id., ¶¶ 9-10, 20.) Michael was ejected from his motorcycle, and Cohen fled the scene of the accident. (Id., ¶¶ 10-11.) Defendants Lupin Heights, Inc. (“LHI”) and Lupin Naturist Club Ltd. (collectively, “Lupin”) own and/or manage the Lupin Lodge, and Cohen was their employee acting in the scope of her employment at the time of the accident. (Id., ¶¶ 6-7, 14-15.) Lupin was aware for some time prior to the accident that Cohen had a history of driving recklessly within the Lupin Lodge. (Id., ¶ 18.) Lupin continued to employ Cohen despite her documented history of reckless driving, substance abuse, and erratic behavior. (Id., ¶ 43.)

On August 19, 2014, Plaintiffs filed this action for: (1) wrongful death (against all defendants); (2) survival action (against all defendants); (3) negligence (against Cohen); (4) negligence (against Lupin); (5) employer’s vicarious liability (against Lupin); and (6) punitive damages (against all defendants).

On December 18, 2014, Cohen filed the instant motion to strike the punitive damage allegations in the complaint. On January 9, 2015, LHI filed a motion for joinder to Cohen’s motion.

I. Joinder

LHI’s motion for joinder is DENIED. The motion was not timely served before the hearing on Cohen’s demurrer. (See Code Civ. Proc., § 1005, subd. (b) [moving papers shall be served 16 court days before the hearing, increased by 5 calendar days if served by mail within California]; Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637 [trial court erred in granting untimely joinder to summary judgment motion]; Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 718-719 [trial court erred in permitting joinder because the notice of joinder was not timely served].) In addition, LHI has already filed an answer. (See Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 371 [“a defendant can move to strike a complaint only before he has answered it and not afterward”].)

II. Request for Judicial Notice

Cohen’s request for judicial notice of filings in the related felony action against her is GRANTED. (Evid. Code, § 452, subd. (d).) To the extent that the request is granted, however, the Court takes judicial notice of the existence and content of these documents only, and not of the truth of statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1568 [a court may take judicial notice of the existence and content of each document in a court file, but cannot take judicial notice of the truth of statements or factual findings therein].)

III. Motion to Strike

Cohen argues that Plaintiffs fail to allege malicious conduct in support of their claim for punitive damages. (See Civ. Code, § 3294, subd. (c) [malice supporting a claim for punitive damages requires intent to injure or despicable conduct carried out in conscious disregard of a person’s safety].) Plaintiffs contend that the allegation that Cohen fled the scene of the accident is adequate to support a claim for punitive damages because Cohen “presumably saw and was aware that she had caused a serious accident,” but left Michael “dying on the road” without pulling over to help him or alert authorities, making a “conscious decision … to leave the scene of the accident rather than stay and render aid” to Michael. (Opp., pp. 4-5.)

Cohen’s actions under these circumstances may indeed support a claim for punitive damages. (See Pelletti v. Membrila (1965) 234 Cal.App.2d 606, 612-613 [finding in a contributory negligence case that hit-and-run driving is “the grossest type of misconduct, which in our view provides direct evidence of the wanton state of mind of the defendant at the time of the accident and specific proof of his willingness to expose others to the probability of injury”]; see also Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1319 [noting that the trial court had awarded punitive damages in an automobile accident case where the defendant was convicted of fleeing the scene of an injury accident but was found not guilty of driving under the influence].) However, none of these asserted facts are included in the complaint, which depends upon the bare allegation that Cohen fled the scene of her accident with Michael. While hit-and-run driving may support a claim for punitive damages in combination with other circumstances, Plaintiffs’ complaint as currently pleaded does not provide the detail necessary to support a finding of malicious conduct. (Cf. Pelletti v. Membrila, supra, 234 Cal.App.2d at pp. 611-612 [“Defendant’s conduct contained the following elements: (1) intoxication; (2) speed excessive for the time and place and condition of the driver, as indicated by the testimony on swerving and by 116 feet of skid marks; (3) gross inattentiveness or gross incapacity in not seeing a pedestrian directly under a street light until 35 feet away; (4) flight from the scene …. The concatenation of these factors provided sufficient basis to submit the issue of wilful misconduct to the jury.”].)

Cohen’s motion is accordingly GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

The following language is hereby stricken from the complaint as to Cohen:

-“PUNITIVE DAMAGES” (Complaint, caption, p. 1, ll. 11-12.)

-paragraphs 52-55 (Complaint, p. 8, l. 27-p. 9, l. 12.)

-paragraph 2 of the prayer for relief (Complaint, prayer for relief, p. 9, l. 19.)