Alberto Solano Pancheco, III., vs. Robert Thomas, et al.

5. CU0002468 Alberto Solano Pancheco, III., vs. Robert Thomas, et al.

Defendants’ Robert Thomas and Deborah Thomas unopposed motion to strike portions of the complaint related to punitive damages is granted with leave to amend.

Legal Standard

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.

Punitive damages are authorized in tort actions “where the tortious event involves an additional egregious component - ‘oppression, fraud, or malice.’ ” College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712, citing Civ. Code § 3294(a).

“Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Civ. Code, § 3294 (c)(2). 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 of the rights or safety of others.” Civil Code section 3294b(c)(1) (italics added.) ”For plaintiffs attempting to prove malice by showing a ‘conscious disregard’ of their rights as opposed to an actual intent to harm, the Act imposed additional requirements of ‘despicable’ and ‘willful’ defense conduct.”

College Hospital, 8 Cal.4th at 713. “‘Despicable conduct’ is defined ... as ‘conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’” Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.

The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.

Analysis

At bar, Defendants argue Plaintiff’s complaint fails to plead sufficient factual allegations to support a prayer for punitive damages, as it merely makes conclusory allegations with no factual basis. Mot., 2:21-22 5, Compl. 3rd COA. Defendant also argues there are no facts alleged to show “despicable conduct” on the part of Defendant, and the conduct alleged is rooted in negligence. Mot., 5: 12-17. The Court agrees in large part.

First, Plaintiff has filed no opposition to the motion; as such, the Court deems Plaintiff’s failure to oppose the motion as consent to the granting of the same. See Cal. Rules of Court, rule 8.54(c) (“failure to oppose a motion may be deemed a consent to the granting of the motion.”); see, e.g., Amato v. Downs (2022) 78 Cal.App.5th 435, 440, n.3 (unopposed motion can be granted on that basis, citing rule 8.54(c)).

Second, the complaint presently does not sufficiently allege facts that Plaintiff engaged in tortious conduct that involved oppression, fraud or malice as required. See Compl. 3rd COA (“Defendant ROBERT THOMAS, the owner of the dog, knew or should have known about the dog’s propensity to bite/attack and still allowed the dog to come in to contact with others unattended such that Defendants are subject to punitive damages as set forth in California Civil Code § 3294.”).

“The rules governing the right to amend a defective pleading are settled. Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174 (citations and quotations omitted). However, “[t]he burden is on plaintiffs to prove that amendment could cure the defect.” King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050. “[A] plaintiff must submit a proposed amended complaint or, ..., enumerate the facts and demonstrate how those facts establish a cause of action [or request for relief].”

Salazar v. Target Corporation (2022) 83 Cal.App.5th 571, 577. Plaintiff did not oppose the motion and has made no showing how the defects are reasonably capable of cure. On the record presented, leave to amend is denied.

6. CU0000090 Matthew Palleschi, et al. v. Daniel Fraiman Construction, Inc., et al

Appearances are required in connection with the motion for a trial continuance by Defendant CG West Flooring, dba Artisan Hardwood Floors, Inc.

6