Case Number: BC704280 Hearing Date: August 09, 2018 Dept: 4

MOVING PARTY: Defendants Jody Jay Queen and Tiziana Giuseppa Queen

RESPONDING PARTY: Plaintiffs Bradley Stephen McCart and Ashley Thomas

Motion to Strike Portions of Complaint

The court considered the moving, opposition, and reply papers.

BACKGROUND

On May 1, 2018, plaintiffs Bradley Stephen McCart and Ashley Thomas filed a complaint against defendants Jody Jay Queen and Tiziana Giuseppa Queen for motor vehicle negligence based on an incident that occurred on October 21, 2016.

Trial is set for November 1, 2019.

LEGAL STANDARD

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any 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. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found:

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

Indeed, “malice” is defined in Civil Code § 3294 to mean “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 § 3294(c)(1). As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

A claim for punitive damages may not be based on conclusory allegations of oppression, fraud or malice, but instead must be based on factual allegations which support such a conclusion. See Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive damages because “[t]he sole basis for seeking punitive damages are . . . conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”).

DISCUSSION

Defendants request that the court strike paras. 9, 10, 11, 12, and 15, and prayer for punitive damages.

In the complaint, plaintiffs allege that defendant Jody Jay Queen breached the duty of care when he became intoxicated, and while under the influence of alcohol and/or drugs became intoxicated, and while under the influence of alcohol and/or drugs, so negligently owned, controlled, repaired, entrusted, maintained, and operated a Ford F150, failing to yield and causing said collision with plaintiffs’ automobile. Complaint, ¶8. Defendant consumed alcohol and/or drugs to the point of intoxication, knew he was intoxicated, knew from the outset before consuming alcohol and/or drugs that he must thereafter operate a motor vehicle, knew he was unfit to operate a motor vehicle, knew the danger of driving a motor vehicle while intoxicated, and knew the danger to persons such as to plaintiffs, that existed from operation of a motor vehicle while intoxicated. Id., ¶9. Defendant was arrested for driving under the influence in violation of Vehicle Code §§23152(a) and 23152(b).

Defendant argues that the allegations do not show malice, oppression, or fraud, and that the allegations are conclusory. The court agrees.

Taylor v. Superior Court (1979) 24 Cal. 3d 890, is instructive with respect to this set of facts because plaintiff is alleging that defendant was intoxicated. The Court in Taylor fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated.¿ The Taylor Court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” Id. at 892.¿

In the subsequent decision of Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 89, the Court of Appeal held that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” See also Busbom v. Superior Court (1980) 113 Cal. App. 3d 550 (plaintiff alleged that defendant drove his pickup southbound in the northbound lane of the highway); Peterson v. Superior Court (1982) 31 Cal. 3d 147, 162 (defendant was alleged to be driving at speeds of greater than 100 miles per hour after consuming alcoholic beverages); Sumpter v. Matteson (2008) 158 Cal. App. 4th 928, 936 (defendant ran red light after ingesting drugs).

Significantly, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code § 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. There has been no subsequent decision holding that drinking and driving, without aggravating circumstances that make injury probable, gives rise to a claim for punitive damages.

Based upon the discussion set forth above, the court finds that the allegations are insufficient to support a claim for punitive damages because plaintiffs have not pled aggravating circumstances. As to defendant owner Tiziana Giuseppa Queen, the allegations are insufficient to show malice, oppression, or fraud under a theory of negligent entrustment, which has not been pled.

Defendants’ motion to strike portions of the complaint is therefore GRANTED WITH 15 DAYS LEAVE TO AMEND.

The court STRIKES paragraphs 12 and 15 and prayer for punitive damages.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 9, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court