This is an action for motor vehicle negligence brought by plaintiffs Menachem Hahn, Shayna Partouche, and Ness H. (Plaintiffs) against defendants Yu Cao (Cao), Elijah Batino (Batino), and Doe defendants. It arises from an alleged motor vehicle accident that occurred on January 5, 2025 on south-bound Route 9 in Los Gatos, California.

The original and still operative complaint, a form complaint, purports to allege two causes of action: (1) motor vehicle negligence; and (2) “intentional tort.” (The second cause of action is a category of cause of action, not a cause of action in itself.) The complaint also has an exemplary damages attachment. There are no exhibits attached to the complaint. Defendant Batino filed an answer to the complaint in August 2025.

At issue are Cao’s demurrer to, and motion to strike portions of, the complaint. Plaintiffs oppose.

DISCUSSION

Cao’s Demurrer

Cao demurs to the second cause of action on the basis that it fails to state sufficient facts. (See notice of demurrer.)

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations, but does not accept as true contentions, deductions, or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) A demurrer will be overruled if the allegations of the complaint state a cause of action “under any legal theory.” (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1091.)

The court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. That includes declarations. The court has considered the two (essentially identical) declarations from Cao counsel Adam Tanouye in support of the demurrer and motion to strike only to the extent they discuss the meet and confer efforts required by statute and has not considered the attached exhibits. The court has not considered any portion of the two declarations filed by Plaintiffs’ counsel Mark Rosenberg.

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There is no cause of action for “intentional tort.” That label instead describes a category of civil causes of action. As currently pleaded, the second cause of action merely asserts that the same conduct alleged to be negligence in the first cause of action also constitutes an unspecified intentional tort. “A negligent person has no desire to cause the harm that results from his carelessness, ... and he must be distinguished from a person guilty of willful misconduct, such as assault and battery, who intends to cause harm.” (Mahoney v.

Corralejo (1974) 36 Cal.App.3d 966, 972.) “Willfulness and negligence are contradictory terms.” “If conduct is negligent, it is not willful; if it is willful, it is not negligent.” (Ibid.) “‘No amount of descriptive adjectives or epithets may turn a negligence action into an action for intentional or willful misconduct.’” (Carter v. Prime Healthcare Paradise Valley LLC

(2011) 198 Cal.App.4th 396, 413, quoting Mahoney at p. 973.) The second cause of action fails to state sufficient facts.

The second cause of action is not alleged in the alternative to the first cause of action. And unlike the first cause of action, the second cause of action is alleged only on information and belief. To adequately plead an allegation on the basis of information and belief, a plaintiff must allege the facts or information that led the plaintiff to infer or believe the truth of the ultimate factual allegation. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-59; Brown v. USA Taekwondo (2019) 40 Cal.App.5th 100, 1106 [“where factual allegations are based on information and belief, the plaintiff must allege ‘information that “lead[s] [the plaintiff] to believe that the allegations are true”’”].)

A party cannot simply include the phrase “information and belief,” without more. (Gomes, at pp. 1158-59.) Allegations made on “information and belief” that lack supporting information are not accepted as true on demurrer. The decisions in Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82, cited in the opposition, do not provide any support for overruling the demurrer or granting leave to amend. Both of those decisions involved intoxicated drivers, and the complaint does not allege that Cao or any of the other defendants were intoxicated.

Cao’s demurrer to the second cause of action on the ground that it fails to state sufficient facts is sustained.

A plaintiff bears the burden of demonstrating that an amendment would cure the defect identified on demurrer. (Schifando v. City of Los Angeles (2003) 32 Cal.4th 1074, 1081; Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.) The opposition does not meet this burden. Plaintiffs merely argue the demurrer should be overruled, and make only a generic request for leave to amend if the court finds that the second cause of action needs to be “clarified” or “refined.” Because this is the first pleading challenge in the case, the court will grant Plaintiffs 30 days’ leave to amend the second cause of action. The court does not grant leave to add new causes of action or new parties. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

Cao’s Motion to Strike

Cao moves to strike (1) the second cause of action in its entirety, and (2) all references to punitive and exemplary damages.

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading, or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Irrelevant matter includes (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, and (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (See Code Civ.

Proc., § 431.10, subds. (b), (c).) At the same time, the California Court of Appeal has emphasized “[w]e have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a); see also City and County of San Francisco v. Strahlendorf 6

(1992) 7 Cal.App.4th 1911, 1913.) In ruling on a motion to strike, the court reads the complaint as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 (Turman).) As with a demurrer, extrinsic evidence cannot be considered.

California Rules of Court, rule 3.1322(a) requires that “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).) Cao seeks to strike specific requests for punitive damages from the complaint as unsupported, the second cause of action in its entirety, and the exemplary damages attachment in its entirety. (See Notice of Motion at pp. 1:25-2:1.) While not numbered consecutively, Cao sufficiently complied with Rule of Court 3.1322.

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘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.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ is ‘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.’” (Turman, supra, 191 Cal.App.4th at p. 63, internal citations omitted.)

The complaint merely repeats terms from the statute. That is insufficient. A complaint must include specific factual allegations showing the defendant’s conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) Punitive damages may not be pleaded generally.

Cao’s motion to strike is granted in part and denied in part. The motion to strike the second cause of action in its entirety is denied as moot in light of the court’s ruling sustaining the demurrer to the second cause of action. The motion to strike is granted in all other respects. The court strikes the request for “Exemplary Damages” in paragraph 10 of page 3 of the complaint, the request for “punitive damages” in paragraph 14 of page 3 and the exemplary damages attachment in its entirety. The complaint fails to adequately allege any basis for seeking exemplary or punitive damages from Cao.

Plaintiffs’ opposition fails to meet their burden to show how those defects can be cured by amendment, as it argues that the motion should be denied and makes only a summary request for leave to amend “if the Court concludes additional detail is required.” Because this is the first pleading challenge to be heard in this case, the court will grant 30 days’ leave to amend. The court does grant leave to add new parties or new causes of action.

Cao’s demurrer to the complaint’s second cause of action is sustained with 30 days’ leave to amend.

Cao’s motion to strike portions of the complaint is denied as moot as to the second cause of action and granted with 30 days’ leave to amend in all other respects.

The court will prepare the order.