Maesyn Rose Fitzgibbons vs Jesus Lucatero Urbina et al

Case Number

23CV02566

Case Type

Hearing Date / Time

Fri, 09/15/2023 - 10:00

Nature of Proceedings

Motion to Strike

Tentative Ruling

TENTATIVE RULING:

 For all reasons discussed herein, defendants’ motion to strike plaintiff’s claim for punitive damages is granted in part with leave to amend. The following matters shall be stricken from plaintiff’s complaint: paragraphs 15, 22, 23, 28, 29, 30 (the term “reckless” only); paragraph 31 (the terms “willful and conscious disregard of the rights and safety of others” only); and prayer for relief paragraph 4 in its entirety. Any first amended complaint that may be filed by plaintiff must be filed and served on or before September 25, 2023.

 

 Background:

 

This action arises from a vehicle collision that occurred on June 16, 2021, on southbound U.S. Highway 101 (the highway). As alleged in the complaint filed in this action on June 14, 2023, plaintiff Maesyn Rose Fitzgibbons was driving a vehicle in the far right-hand lane of the highway just north of the Garden Street exit when she had to come to a halt due to stationary traffic ahead. Defendant Jesus Lucatero Urbina (Urbina) was driving directly behind plaintiff in the same lane and defendant Noe Antonio Diosdado Jr. (Diosdado) was driving directly behind Urbina in the same lane. Diosdado was driving his vehicle in his capacity as an employee of defendant JNL Glass, Inc. (JNL). Plaintiff was rear-ended by the car behind her causing her to jolt forward, whip her neck, and pop her sternum. Following a field investigation, the California Highway Patrol determined that Diosdado hit Urbina who in turn hit plaintiff.

 

At the time of the subject incident, plaintiff had recently started driving again after an accident in May 2020 that caused significant injuries including a shattered pelvis and leg amputation. The collision that is the subject of this action caused plaintiff to suffer injuries and bodily trauma with significant additional pain and a recurrence of post-traumatic stress disorder and anxiety attacks. Plaintiff has also suffered academic setbacks as a result of the subject incident. The complaint alleges one cause of action for negligence against Urbina, Diosdado, and JNL.

 

Defendants JNL and Diosdado (collectively, defendants) have filed a motion to strike the claim for punitive damages alleged in plaintiff’s complaint and allegations relating to plaintiff’s claim for punitive damages on the grounds that plaintiff has failed to allege facts sufficient to support a claim for punitive damages. Plaintiff opposes the motion.

 

Analysis:

 

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

 

Defendants move to strike the allegations “recklessly operated”, “reckless conduct”, “willful and conscious disregard of the rights and safety of others”, and “[p]unitive [d]amages” where they appear in paragraphs 15, 22, 23, 28, 29, 30, 31, and in prayer for relief paragraph 4 of plaintiff’s complaint. To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) In addition, the facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)

 

Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) While the term “despicable” is not defined in Civil Code section 3294, subdivision (c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (College Hospital).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

 

Giving the complaint a reasonable interpretation, the “reckless conduct” carried on by Diosdado “with a willful disregard for the consequences of his actions” is alleged by plaintiff to be Diosdado’s failure to “drive and come to a complete stop with enough space between his vehicle and the vehicle operated by [plaintiff] and causing his vehicle to collide into the back of the vehicle being operated by [plaintiff]” and violation of “numerous California Vehicle Code Sections, including but not limited to section 22350, by failing to drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of the highway.” (Compl., ¶¶ 14, 15, 27.) These allegations state nothing more than a claim for ordinary negligence and do not state facts sufficient to support an allegation that Diosdado acted with malice, oppression, or fraud as required by the statute. The remaining allegations of the complaint that appear to relate to plaintiff’s punitive damages claim are conclusory and do not by themselves support a claim for punitive damages.

 

With respect to the claim for punitive damages against JNL, who is alleged to be Diosdado’s employer, “Civil Code section 3294, subdivision (b) imposes additional requirements on plaintiffs attempting to hold an ‘employer’ liable for punitive damages ‘based upon acts of an employee.’ The employer must have ‘had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or [been] personally guilty of oppression, fraud, or malice.’ [Citation.] Subdivision (b) also states that, ‘[w]ith respect to a corporate employer,’ the offending conduct ‘must be on the part of an officer, director, or managing agent of the corporation.’ [Citation.]” (College Hospital, supra, 8 Cal.4th at p. 721.) Apart from alleging that JNL was Diosdado’s employer and that the vehicle driven by Diosdado was owned by JNL, wholly absent from the complaint are any facts that would support the allegation that JNL may be held liable for punitive damages based on Diosdado’s acts.

 

In the opposition to the motion, plaintiff offers information regarding the vehicle driven by Diosdado, additional details regarding the subject incident, and facts regarding the reason JNL provided the vehicle to Diosdado. Plaintiff suggests that these additional facts are supported by inferences that may be drawn from the express allegations of the complaint. There are no facts alleged in plaintiff’s complaint either expressly or by implication that would support the allegations offered in plaintiff’s opposition. In addition, as these matters do not appear on the face of the complaint and are not proper subjects of judicial notice, the Court disregards these allegations for purposes of determining whether the allegations of the complaint support a claim for punitive damages.

 

For all reasons discussed above, the complaint fails to allege facts sufficient to support a claim for punitive damages against defendants. Therefore, the Court will grant defendants’ motion to strike, in part as further discussed below, with leave to amend. Leave to amend will be limited to providing further allegations relating to a claim for punitive damages. In the event that plaintiff seeks to add any other cause of action, plaintiff will need to obtain leave of court either by stipulation or by noticed motion.

 

The Court further notes that defendants have requested that the Court strike the terms “conduct” and “operated” from paragraphs 15, 22, 23, 28, 29 and 30. These terms are essential to the claims alleged in paragraphs 15, 22, 23, 28, 29 and 30 of the complaint. Therefore, the Court will deny the motion to the extent it requests that the Court strike these terms. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)