2017-00216701-CU-PA

Gerald Austin vs. Sondra Alane Nevarez

Nature of Proceeding: Motion to File 2nd Amended Complaint

Filed By: Tiemann, Peter B.

Plaintiffs Gerald Austin, Sr., and Kathy Brown Austin’s (collectively, “Plaintiffs”) motion for leave to file Second Amended Complaint (“SAC”) to include punitive damages is GRANTED.

This action arises from a motor vehicle accident that occurred on October 24, 2016, in which Defendant Sondra Alane Nevarez (“Nevarez”) allegedly crashed into a school bus, causing the bus to roll over. Plaintiff Gerald Austin, Sr. was serving as an attendant on the bus at the time of the collision and was injured. Plaintiffs filed their original complaint on August 2, 2017, alleging motor vehicle and general negligence. Plaintiffs filed their First Amended Complaint on October 19, 2017, alleging motor vehicle, general negligence, and loss of consortium. The Court consolidated Plaintiffs’ case with another case on March 15, 2018, and discovery has been ongoing.

Plaintiffs now move for leave to amend to include a claim for punitive damages as Nevarez was driving under the influence of a Gabapentin, Oxycodone, and Oxycontin cocktail when the vehicle she was operating caused the collision.

No trial date has been scheduled.

Plaintiffs move on the grounds that Nevarez testified she consumed Gabapentin, Oxycodone, and Oxycontin approximately one hour prior to causing the collision in which Mr. Austin was injured and that she admits she knew these medications could cause drowsiness. Plaintiffs contend Nevarez acted with a willful and conscious disregard of the rights and safety of others, and California law allows for the imposition of punitive damages when an individual drives while intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890.)

It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others. (Board of Trustees v. Super. Court (2007) 149 Cal. App. 4th 1154, 1163.) Moreover, Section 473 of the Code of Civil Procedure authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. The policy of great liberality in permitting amendments at any stage of the proceeding has been declared by our courts. (Klopstock v. Superior Court (1941) 17 Cal. 2d 13, 19-20.) However, courts should not permit an amendment “where it would not serve any useful purpose.” ( Maple Properties v. Harris (1984) 158 Cal. App. 3d 997, 1012.)

Punitive damages are available in personal injury actions against one who drives while knowingly intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890.) “There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [citation omitted] One who willfully consumes alcoholic beverage to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby

combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver has a history of drunk driving incidents.” (Id. at 897-898.) A claim for punitive damages can be premised on despicable conduct involving consumption of alcoholic beverages. (Id. at 899.) Such alleged conduct demonstrates, in the words of Dean Prosser, “such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Id.; see also Burg v. Municipal Court, (1983) 35 Cal. 3d 257, 262.)

In opposition, Defendants contend Plaintiffs’ proposed amendment fails to state specific facts sufficient to support a claim for punitive damages. Specifically, Defendants contend the proposed allegations only assert that Nevarez decided to drive while intoxicated, without any specific allegations, such as the manner or speed in which she was driving, from which the conscious disregard of probable injury to others may reasonably be inferred. Defendants also contend the evidence Plaintiffs submit in support of their proposed amendment does not support their request because Nevarez also testified that she has taken these drugs for 15 years and they have never (individually or in combination) made her dizzy or caused impairment, no physician ever told her these drugs could affect her ability to drive, and that on the morning of the accident she felt fine.

Defendants’ arguments in opposition go to the factual validity of the proposed amendment, which is generally not considered in deciding whether to grant leave to amend. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281.)

Defendants also contend they will be prejudiced if the Court grants leave to amend because it will set off a new round of pleadings, including a likely demurrer, motion to strike, and/or motion pursuant to Code of Civil Procedure section 128.7. Defendants present no legal authority that any of the foregoing trumps the policy of great liberality that should be afforded in allowing amendments. The Court finds this claimed prejudice is not a basis upon which leave to amend should be denied.

Plaintiffs’ motion for leave to file Second Amended Complaint is GRANTED.

Plaintiffs to file and serve their Second Amended Complaint no later than August 28, 2018. Although not required by Court rule or statute, Plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing.

The proposed Second Amended Complaint attached to Plaintiff’s moving papers will not be separately filed by the court clerk, but remains with the motion as an exhibit.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.