Motion to Strike Punitive Damages from Plaintiffs' First Amended Complaint
2025CUPP054330: REGINA TENZER, INDIVIDUALLY, et al. vs WILLIAM ROBERT FISCHBACH, AN INDIVIDUAL 06/24/2026 in Department 21 Motion to Strike Punitive Damages from Plaintiffs' First Amended Complaint
Tentative Rulings. Parties and counsel appearing for oral argument should address the tentative decision. Parties may submit on the tentative decision by email, with a copy to all other parties in the matter, to courtroom21@ventura.courts.ca.gov before 8:00 a.m. on the day set for the hearing, with a subject line that includes “SUBMISSION ON TENTATIVE”, Case Number, Title and Party. If fewer than all parties submit on the tentative, the hearing will proceed, and the tentative ruling is subject to change. The clerk cannot advise if you should still appear or not. The decision of whether to appear for a hearing is to be made by the parties and their counsel. (Dept. 21 Rules & Procedures, p. 4, § II.I.)
The following is a statement of the Court’s tentative ruling. The Court may adopt, modify or reject the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.
Motion: Motion by Defendant Jose Jairo Martinez Ponce (“Defendant” or “Ponce”) to strike portions of the first amended complaint (“FAC”) (opposed).
Tentative Ruling: Ponce’s motion to strike is GRANTED, with leave to amend. Plaintiff shall file a second amended complaint by no later than 7/6/26.
Counsel for Defendant Ponce to give notice within two (2) court days.
Discussion:
Survival Claim & Punitive Damages:
“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)
“Malice [is defined as] 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 for the rights and safety of others.” (Civ. Code, § 3294
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
2025CUPP054330: REGINA TENZER, INDIVIDUALLY, et al. vs WILLIAM ROBERT FISCHBACH, AN INDIVIDUAL
General or conclusory allegations are insufficient. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) The legal conclusion that a defendant’s conduct was malicious, oppressive, or fraudulent under Civil Code section 3294 is insufficient. (E.g., ibid.) Even gross negligence is insufficient to support a claim for punitive damages. (See Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Grieves v.
Superior Court (1984) 157 Cal.App.3d 159, 166.) Pleading the language of the statute is appropriate when supported by allegations showing malice, oppression, or fraud, and the complaint must be read as a whole with all parts in context. (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7.) Alleging facts describing a knowing and deliberate state of mind from which a conscious disregard of petitioner’s rights may be inferred is sufficient. (Id., at p. 6.) Malice does not require actual intent to harm; conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. (Taylor v.
Super. Ct. (1979) 24 Cal.3d 890, 895-896.)
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.) “‘In passing on the correctness of a ruling on a motion to strike [punitive damages allegations], judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.]” (Turman v. Turning Point of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.)
In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court held that a claim for punitive damages could be based on allegations of drunk driving where other aggravating circumstances are present, i.e. the defendant knowingly consumes alcohol to the point of intoxication knowing he/she would later drive with knowledge of the increased risk of harm and injury posed by his/her conduct. (Id., at pp. 897-898.)
As to Defendant Ponce, Defendant is correct. The FAC fails to allege any specific facts showing malice, oppression, or fraud as to Defendant Ponce. Plaintiffs seem to concede this fact and request leave to amend. Plaintiffs attach a proposed second amended complaint to their opposition, stating they will add facts alleging Ponce was intoxicated and that law enforcement recommended that DUI charges be filed against him. Plaintiff must allege aggravating factors for the court to allow a claim for punitive damages. Since Plaintiffs have not had an opportunity to amend, leave to amend will be granted. However, Plaintiffs are to note that, as state above, general or conclusory allegations are insufficient. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)
Ponce’s motion to strike the prayer for punitive damages in connection with the survivor claim is GRANTED. Since Plaintiff has not yet had an opportunity to amend, the motion to strike is GRANTED with leave to amend.
Wrongful Death Claim:
Damages may be recovered pursuant to this section in an action pursuant to Chapter 4 (commencing with Section 377.10) of Title 3 of Part 2 of the Code of Civil Procedure based upon a death which resulted from a homicide for which the
2025CUPP054330: REGINA TENZER, INDIVIDUALLY, et al. vs WILLIAM ROBERT FISCHBACH, AN INDIVIDUAL
defendant has been convicted of a felony, whether or not the decedent died instantly or survived the fatal injury for some period of time. The procedures for joinder and consolidation contained in Section 377.62 of the Code of Civil Procedure shall apply to prevent multiple recoveries of punitive or exemplary damages based upon the same wrongful act.
(Civ. Code, § 3294, subd. (d).)
Plaintiffs allegations in the FAC do not allege that criminal charges were recommended or that Ponce had been convicted of a felony. Therefore, Plaintiffs have not stated a claim under the wrongful death statute, and cannot do so unless Ponce is ultimately charged with and convicted of a felony in connection with this collision.
Thus, Ponce’s motion to strike the prayer for punitive damages in connection with the wrongful death claim is GRANTED. Although it may be difficult for Plaintiff to state facts to support a wrongful death claim against Ponce, since Plaintiff has not yet had an opportunity to amend, the motion to strike is GRANTED with leave to amend.
3