1. Demurrer by Defendants to Complaint:

Sustained with 21 days leave to amend as to the first and second causes of action. Overruled as to the third.

(a) Liberality in pleadings is the rule but this complaint is substandard and confusing as to the 1st and 2nd causes of action. It must be amended, preferably not by means of a check the box Judicial Council Form complaint. [See People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal. App. 4th 1480, 1485-1486.] The motor vehicle cause of action states nothing, only that acts were negligent and caused damage to plaintiff on July 13 2012.

The second cause of action seems to sound in negligence for driving an auto into the back of Plaintiff’s auto while intoxicated but the intentional act seems to be getting intoxicated not running into the back of the Plaintiff’s car. There is certainly no allegation that Defendant Salsbury-Bordeaux intended to run into Plaintiff’s car and injure him. More is needed if that is so.

(b) The third cause of action is sufficient. Plaintiff has alleged defendant Wimberly knew that defendant Salsbury-Bordeaux had a history of driving while intoxicated and thus presented a danger to other drivers, but he nevertheless lent her his car. Defendants object that there is no allegation that Wimberly knew that Salsbury-Bordeaux was incompetent to drive the night of the accident.

Knowledge of prior accidents by the driver borrowing the car has been found sufficient for negligent entrustment liability. [See Allen v. Toledo (1980) 109 Cal. App. 3d 415.] Just as knowledge of prior accidents that did not take place on the day the car was borrowed can provide a basis for negligent entrustment liability, so too knowledge of prior drunk driving prior to the day the car was borrowed are enough at the pleading stage for negligent entrustment liability.

Defendants shall give Notice.

2. Motion by Defendants to Strike Portions of Complaint:

Granted with 21 days leave to amend.

Civil Code § 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. Civ. Code § 3294(c) (1).

In Taylor v. Superior Court (1979) 24 Cal. 3d 890, the California Supreme Court ruled that non-intentional torts may form the basis for punitive damages when the conduct constitutes a conscious disregard of the rights or safety of others. Id. at 896-96. The plaintiff must establish, however, that the defendant was aware of the probably dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. Id. at 895-96. In Taylor, the defendant was intoxicated; he hit another car and injured the other driver. Id. at 893. The allegations in Taylor included that, prior to the accident in issue, the defendant had other drunken driving incidents, arrests, and accidents. The Court found sufficient allegations to support a claim for punitive damages because the allegations supported knowledge and disregard of probable injury to others. Id. at 900.

Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, cited by Defendant, was decided before Taylor and pre-dates the requirement for despicable conduct. Dawes addressed the issue of foreseeability, finding that the defendant’s speed and weaving in and out of traffic in an area congested with cars and pedestrians raised the scenario above the foreseeability of injury to others inherent in driving under the influence to a probability of injury. Id. at 86. It was this set of circumstances, rather than the defendant’s intoxication, which provided a basis for punitive damages. Id. at 89.

In Peterson v. Superior Court (1982) 31 Cal. 3d 147, the California Supreme Court again found allegations of intoxicated driving sufficient to support a claim of punitive damages where facts were alleged that the defendant knew of the probable serious injury to others from his drunk driving. Id. at 163.

It is clear from the case law that causing an accident while under the influence is, alone, not enough to support an award of punitive damages. It is not yet clear what more is needed. In Sumpter v. Matteson (2008) 158 Cal. App. 4th 928, 936, the court of appeal addressed that issue, though not at the pleading stage. The court of appeal noted that the defendant there ingested drugs right before he left his house, that by his own admission, [defendant] knew he was under the influence when he got into his car, and that [defendant] knew the light was red for over a quarter mile before he entered the intersection, yet he never braked, choosing instead to take the risk and run the red light. Such conduct reflects a conscious disregard for the rights and safety of others and would have supported the imposition of punitive damages in this case.” Id.

In any event, Plaintiff here has not alleged anything comparable to Taylor, Dawes, Peterson, or Sumpter here in this Judicial Council Form complaint.

Back to the drawing board please.

21 days leave to amend.

Defendants shall give Notice.