2018-00232924-CU-PA
Joseph Leigh Perry vs. Nunzio Femino
Nature of Proceeding: Motion to Strike Portions of Plaintiff’s Complaint
Filed By: Raymundo, Larisa K.
This matter was originally set for hearing on 8/3/2018 but was continued to this date to permit the parties to meet-and-confer as required by Code of Civil Procedure §435.5. The court now issues the following tentative ruling.
Defendants’ motion to strike from the complaint plaintiff’s claims for attorney fees and punitive damages is GRANTED but with leave to amend, as follows.
The opposition papers inexplicably fail to comply with CRC Rule 3.1110(b)(1), (3)-(4).
Factual Background
This action arises from a motor vehicle accident alleged to have occurred when defendants’ vehicle made an illegal u-turn directly in front of plaintiff, who asserts that the driver fled the accident scene and either has been or will be convicted of felony hit-and-run. The complaint claims entitled to attorney fees pursuant to Code of Civil Procedure §1021.4 as well as punitive damages against the driver and his employer.
Moving Papers. Defendants now move to strike the punitive damages allegations on the ground the complaint fails to plead facts sufficient to establish by clear and convincing evidence that the driver acted with the requisite malice, fraud or oppression. Defendants contend that the conclusory allegations show nothing more
than mere negligence and that the assertion of felony hit-and-run does not support punitive damages, especially when (1) the driver maintains he did not flee the scene,
(2) such action would not be relevant to the injury-producing event, (3) the driver has not to date been convicted and (4) the allegation of felony hit-and-run is impermissibly conclusory and prejudicial.
Opposition. Plaintiff insists defendants’ motion is “procedurally deficient” due to their failure to meet-and-confer and improperly relies on “extrinsic evidence” that the criminal prosecution of defendant driver remains pending with no conviction to date. The opposition also argues that the punitive damages allegations are legally sufficient to establish “despicable conduct” and a “conscious disregard” of the rights or safety of others inasmuch as the complaint specifically asserts the defendant driver, despite facing a “no u-turn” sign, made a u-turn directly in front of plaintiff and then fled the scene, conduct which has previously been found sufficient to support punitive damages. (See, Pelletti v. Membrila (1965) 234 Cal.App.2d 606,)
The court notes the opposition nowhere appears to directly address plaintiff’s claim for attorney fees pursuant to Code of Civil Procedure §1021.4 in action for damages based upon a defendant’s commission of a felony for which s/he has been convicted.
Reply. Defendants maintain the complaint is devoid of facts showing any intent to cause injury or a conscious disregard for the rights or safety of others but instead only conclusory allegations which plaintiff would like to court to infer the requisite malice, fraud or oppression. However, California law is clear that even gross negligence and recklessness are, without more, insufficient to justify punitive damages and that an employer can only face such damages where the requirements of Civil Code §3294(b) are satisfied, but the complaint here does not even attempt to plead specific facts necessary for such a showing.
Analysis
Attorney Fees Pursuant to Code of Civil Procedure §1021.4. This claim will be stricken to the extent the complaint currently alleges defendant driver “has been, or will be, convicted of a felony hit and run.” While plaintiff may be free to allege alternative theories of liability, he is not free to plead alternative facts: Either defendant driver has been convicted of a felony or has not. Only where it is alleged (and proven) that he has actually been convicted of a felony does plaintiff have the potential to recover attorney fees pursuant to §1021.4. As the current allegations do not establish an actual felony conviction of defendant driver, the claim under §1021.4 will be stricken but with leave to amend.
Punitive Damages. Plaintiff’s claim for punitive damages as against both defendant driver and his employer shall also be stricken. With respect to the latter, the complaint includes no specific facts which tend to show that defendant employer had any advanced knowledge of defendant driver’s unfitness, employed him with a “conscious disregard” of the rights or safety of others, or otherwise authorized or ratified the alleged conduct of defendant driver. Instead, the allegations against the employer consist solely of conclusory allegations which essentially track the language of Civil Code §3294(b) but merely reiterating the statutory language is insufficient to state a valid claim for punitive damages.
Similarly, the court finds that the allegations regarding defendant driver’s conduct fall
short of establishing the requisite showing of malice, fraud or oppression. While the complaint asserts there was a “no u-turn” sign and the driver made a u-turn directly in front of plaintiff, these facts alone are insufficient to establish malice, fraud or oppression as automobile accidents occur every day despite such traffic signs or signals as a result of nothing more than mere negligence and the court will not infer anything more in the absence of specific factual allegations.
With respect to the allegation that defendant driver fled the scene of the accident, the court first notes that the Pelletti decision cited by the opposition did not present any question as to the availability of punitive damages or even the sufficiency of the plaintiff’s allegation of same. To the contrary, the primary question presented in Pelletti was should the issue of wilful misconduct of defendant in the operation of his motor vehicle have been submitted to the jury in order to permit plaintiffs to counter the defense of contributory negligence. (Pelletti, at 609.) The Second District Court of Appeal answered in the affirmative, explaining that the evidence of defendant’s (1) intoxication; (2) excessive speed, (3) gross inattentiveness or gross incapacity in not seeing a pedestrian directly under a street light until 35 feet away; and (4) flight from the scene was sufficient “direct evidence” of his indifference to the point of recklessness to the welfare of others to enable the jury to resolve the question of “wilful misconduct.” (Id., at 611-612.) Aside from the fact that Pelletti did not consider any issue relating to punitive damages, there is in that opinion no suggestion that merely fleeing the scene of an accident is itself sufficient to establish malice, fraud or oppression. Instead, the outcome of Pelletti was effectively dictated by a number of factors, all of which are far more egregious than what is currently alleged in the present case. Accordingly, Pelletti plainly does not control the disposition of the present motion.
Conclusion
For the reasons explained above, the motion to strike is granted.
Since this is the first challenge to the complaint, leave to amend is granted. Plaintiff may file and serve an amended complaint no later than 9/17/2018. Although not required by court rule or statute, plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.
Defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.
This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)