Perla Esmerelda Calvillo vs Francisco Javier Lopez, Jr et al

Case Number

24CV01319

Case Type

Hearing Date / Time

Mon, 09/09/2024 - 10:00

Nature of Proceedings

CMC; Motion: Strike the Request for Punitive Damages from Plaintiff's Complaint

Tentative Ruling

Perla Esmerelda Calvillo v. Francisco Javier Lopez, Jr., et al. 

Case No. 24CV01319

Hearing Date: September 9, 2024                                          

HEARING:              Defendants’ Motion To Strike the Request for Punitive Damages from Plaintiff’s Complaint

                                                           

ATTORNEYS:        For Plaintiff Perla Esmerelda Calvillo: Robert J. Stoll, Jr., Julia                                                A. Farrugia, Stoll Nussbaum & Polakov

For Defendants Francisco Javier Lopez, Jr. and Francisco Javier Lopez: Jennifer T. Tseng, H. Daniel Burrows, Tseng & Associates

TENTATIVE RULING:

Defendants’ motion to strike the request for punitive damages from plaintiff’s complaint is denied as to defendant Francisco Javier Lopez, Jr., and granted with leave to amend as to defendant Francisco Javier Lopez.

Plaintiff shall file and serve her first amended complaint no later than September 30, 2024.

Background:

This action commenced on March 7, 2024, by the filing of the judicial council form complaint by plaintiff Perla Esmerelda Calvillo (“Calvillo”) against defendants Francisco Javier Lopez, Jr. (“Lopez, Jr.”) and Francisco Javier Lopez (“Lopez”) setting forth causes of action for (1) motor vehicle; (2) general negligence; (3) negligence per se; and (4) punitive damages.

The complaint relates to a motor vehicle accident in which plaintiff was a seat-belted passenger and Lopez, Jr. was driving. Calvillo alleges that Lopez, Jr. was intoxicated, and that Lopez owned and maintained the vehicle.

Defendants move to strike the prayer for judgment in paragraph 14, on page three of the complaint, for “punitive damages,” and the entirety of the exemplary damages attachment.

Calvillo 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).)

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.) “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).)

“While punitive damages may be recovered in a products liability case [citation] and in a negligence action [citation], in order to justify an award of punitive damages on the basis of a conscious disregard of the safety of others, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of its conduct and that it wilfully and deliberately failed to avoid those consequences. [Citation.]” (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 395.)

“In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendant’s conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  Punitive damages may not be pleaded generally. (Ibid.)” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)

Allegations of “knowledge” and “intent” are allegations of facts, which are sufficiently alleged through use of the term. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803 [“Allegations of the defendant’s knowledge and intent to deceive may use conclusive language.”].)

“One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.” (Taylor v. Superior Court (1979) 24 Cal.3d. 890, 897.) “The allowance of punitive damages in such cases may well be appropriate because of another reason, namely, to deter similar future conduct, the “incalculable cost” of which is well documented.” (Ibid.)

As alleged in the complaint, as the factual basis for seeking punitive damages, and as relevant to the present motion:

“On or about January 31, 2024, at approximately 1:25 a.m., Perla Esmerelda Calvillo, was a passenger in the certain black 2008 Toyota Sequoia driven by Francisco Javier Lopez, Jr. and owned and maintained by Francisco Javier Lopez, said accident occurred in the City of Goleta, County of Santa Barbara, State of California.

“At all times herein mentioned defendant, Francisco Javier Lopez, Jr., drove the aforementioned vehicle while intoxicated by alcohol. From said defendant’s consumption of alcohol, defendant became intoxicated with the full knowledge that said intoxication could lead to serious injury and damage to persons and/or property; and said defendant’s willful intoxication was done with an intentional, willful and reckless disregard for the safety of plaintiff and others.

“Defendant became intoxicated by alcohol and hereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby.

“That in doing the acts and things herein above alleged, defendants and each of them, acted willfully and with malice and oppression and plaintiff requests that punitive and exemplary damages be asserted in an amount to be proven at time of trial.” (Compl., ¶ EX-2.)

The cause of action for punitive damages is asserted against both Lopez, Jr., as the alleged intoxicated driver, and Lopez, as the owner of the vehicle. (Compl., ¶ EX-1.)

While it is correct, as defendants argue, that punitive damages can only be awarded under Civil Code Section 3294 if Calvillo proves “by clear and convincing evidence” that defendant acted with malice or oppression, the case is still at the pleading stage, not the proof stage, so the only issue before the court is whether plaintiff has alleged sufficient facts to state a claim for punitive damages. The court finds that she has. Of course, it will be Calvillo’s burden to prove these allegations by clear and convincing evidence. As such, the allegations are sufficient to support a claim for punitive damages against Lopez, Jr. as the driver of the vehicle. The motion to strike will be denied as to Lopez, Jr.

However, the allegations against Lopez, as the owner of the vehicle, are insufficient to state a claim for punitive damages against him. There is no authority to support punitive damages against someone simply for owning and maintaining a vehicle that was involved in an accident. Calvillo will be required to file a first amended complaint that either removes Lopez as a defendant in the exemplary damages attachment, or alleges specific facts under which plaintiff would be entitled to punitive damages against Lopez.