Lindsay Marks Orsini et al vs Scott Woollard et al

Case Number

24CV00596

Case Type

Hearing Date / Time

Mon, 04/29/2024 - 10:00

Nature of Proceedings

Motion: Strike Prayer for Punitive and Exemplary Damages etc.

Tentative Ruling

Lindsay Marks Orsini, et al. v. Scott Woollard, et al.           

Case No. 24CV00596         

Hearing Date: April 29, 2024                          

HEARING:              Defendants’ Motion to Strike Prayer For Punitive And Exemplary Damages

ATTORNEYS:        For Plaintiffs Lindsay Marks Orsini and Christian Orsini: Ramin Kermani-Nejad, Mohamad Ahmad, Hani Ganji, Kermani LLP

                                    For Defendants Brooke Woollard and Scott Woollard: Nolan S. Armstrong, Caitlyn M. Harris, McNamara, Ambacher, Wheeler, Hirsig &Gray LLP

                                   

TENTATIVE RULING:

The motion of defendants Brooke Woollard and Scott Woollard is granted, with leave to amend. The prayer for punitive damages alleged in prayer paragraph 3 of plaintiffs’ complaint, appearing at page 5, line 18 of the complaint, shall be stricken. Plaintiffs shall file and serve their second amended complaint on or before May 10, 2024.

Background:

Plaintiffs Lindsay Marks Orsini (Lindsay) and Christian Orsini (Christian) (collectively, Orsini) filed a complaint in this matter on February 2, 2024, alleging three causes of action against defendants Brooke Woollard (Brooke) and Scott Woollard (Scott) (collectively, Woollard): (1) negligence; (2) negligent entrustment; and (3) loss of consortium. (Note: Due to common surnames, the court will refer to the parties by their first names. No disrespect is intended.) As alleged in the complaint, on March 7, 2022, while speeding in an SUV owned by Scott and talking on a cell phone, Brooke rear-ended Lindsay causing Lindsay to suffer serious injuries from which she will never fully recuperate.

Woollard filed an answer to the complaint on March 12, 2024, generally denying its allegations and asserting six affirmative defenses.

Also on March 12, 2024, Woollard filed a motion to strike Orsini’s prayer for punitive and exemplary damages on the grounds that plaintiffs have failed to allege facts sufficient to demonstrate an entitlement to punitive damages. The motion is opposed by plaintiffs.

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).)

Woollard contends that Orsini’s allegations that Brooke was speeding and talking on a cell phone are too conclusory to support a claim for punitive damages. Because the complaint includes only conclusory assertions and does not set forth specific allegations of fact sufficient to show malice, despicable, oppressive, or outrageous conduct by Brooke, Woollard argues, there exists no basis for a claim of punitive damages. Woollard also contends that Orsini has failed to allege a sufficient factual basis to support a claim for punitive damages against Scott.

In the opposition to the motion, Orsini argues that the complaint, including inferences that may be drawn from its allegations, sets forth sufficient facts demonstrating that Brooke sped down a residential street while talking on her cellphone knowing that such conduct put others, including Lindsay, at risk. Orsini does not address, with reasoned argument, whether the allegations are also sufficient to support a claim for punitive damages as to Scott.

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.) 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).) “Despicable conduct” for purposes of an award of punitive damages means “conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ … [Citation.] ” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872 [also noting that such conduct has the character of outrage associated with a crime].) “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).)

Based on the allegations of the complaint, including inferences that may be drawn from facts expressly alleged, and Orsini’s opposition, Orsini does not appear to contend that Woollard made an intentional misrepresentation or engaged in deceit or concealment of a material fact, or that the punitive damages claim arises from despicable conduct that subjected Orsini to cruel or unusual hardship. Moreover, the allegations of the complaint do not allege facts sufficient to demonstrate conduct by Woollard that subjected Orsini to fraud or cruel and unusual hardship.

The allegations of the complaint demonstrate that Orsini seeks to impose liability against Scott based on Scott owning, and permitting Brooke to drive, the SUV. There are no allegations sufficient to show that by allowing Brooke to drive the SUV, Scott engaged in “despicable” conduct for purposes of an award of punitive damages under Civil Code section 3294. Further, Orsini has not alleged facts demonstrating that any conduct by Scott was carried on with a willful or conscious disregard for the rights or safety of others. Moreover, in the opposition to the motion, Orsini sets forth no reasoned argument demonstrating how the complaint alleges facts which, if proven, are sufficient to support a recovery of punitive damages against Scott. For these reasons, Orsini has failed to allege facts which, if proven, would be sufficient to support a claim for punitive damages against Scott.

With respect to the claim for punitive damages alleged against Brooke, Orsini asserts that Brooke was speeding and talking on a cell phone when the incident occurred. Though speeding while talking on a cell phone may, in appropriately pleaded circumstances, demonstrate despicable conduct sufficient to support an award of punitive damages, the present allegations alone are conclusory and demonstrate, at most, a negligent or reckless decision by Brooke to speed while talking on a cell phone.

For example, though Orsini contends in the opposition to the motion that Brooke was speeding on a residential street and routinely speeds while being distracted by her cell phone, these allegations are absent from the complaint. Also absent from the complaint are allegations showing the speed at or manner in which Brooke was driving the SUV as a result of using a cell phone. (See, e.g., Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88 [describing allegations which in that matter were found to be sufficient, if proven, to support a finding of conscious disregard of safety and probable injury to others].) The examples provided by the court are intended to be illustrative but not exhaustive. The court intend to suggest nor shall these examples be interpreted by any party to suggest what, if any, allegations would be sufficient to plead a basis for a punitive damages award against Brooke

Furthermore, while Orsini asserts that the court may draw a reasonable inference from the allegations that Brooke knew that speeding on a residential street while talking on a cell phone was illegal and would cause catastrophic injuries to those around her, an inference may only be drawn if “reason and logic” permit the deduction from other facts expressly alleged. (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 181; see also Blank v. Coffin (1942) 20 Cal.2d 457, 461 [“[w]hether a particular inference can be drawn from certain evidence is a question of law”].) Because the allegations of the complaint are conclusory as further discussed above, they are insufficient to permit the court to draw the inferences suggested by Orsini.

 

For all reasons discussed above, the allegations of the complaint do not, with the requisite particularity, sufficiently plead a basis for an award of punitive damages against either Brooke or Scott. Therefore, the court will grant the motion.

In the notice of the motion, Woollard requests an order striking the prayer for punitive damages. Woollard does not specify, in either the notice or the motion, whether Woollard seeks an order striking any other matters alleged in the complaint. Therefore, the court will order prayer paragraph 3, appearing in the complaint at page 5, line 18, stricken from the complaint. To the extent Woollard intends to request an order striking any other portions of the complaint, the notice and motion are procedurally deficient. (Code Civ. Proc., § 1010; Cal. Rules of Court, rules 3.1110(a) [setting forth requirements for a notice of motion].) & 3.1112(d)(3) [a motion must “state the basis for the motion and the relief sought”].)

It is Orsini’s burden to show a reasonable possibility that the defects addressed herein can be cured by amendment to the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In requesting leave to amend, Orsini contends that the incident at issue is not the first time that Brooke has engaged in speeding while talking on a cell phone and that Brooke knows her conduct is illegal and puts others at significant risk. As further discussed above, Orsini also includes information which is not presently alleged in the complaint.

For reasons further discussed above, the complaint does not necessarily show on its face that it is incapable of truthful amendment with respect to the punitive damages claim. Therefore, and as this is the original complaint filed by Orsini, the court will grant Orsini leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.) Orsini may amend the complaint with respect to the claim for punitive damages as authorized herein. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)