2013-00141703-CU-PA

Fidel Vasquez vs. Douglas Taylor

Nature of Proceeding: Motion to Strike

Filed By: Heaton, Daniel C.

Defendant Douglas Taylor’s motion to strike portions of Plaintiff’s First Amended
Complaint is denied.

At the outset, the Court did not consider Plaintiff’s counsel’s declaration which
contained a traffic report [“Indeed, it is well established that traffic accident reports are
not admissible in evidence. (Veh. Code, § 20013; Robinson v. Cable, 55 Cal.2d 425,
429…” Box v.California Date Growers Assn., (1976) 57 Cal. App. 3d 266, 270],
Defendant’s discovery responses, and a criminal complaint related to the subject
incident. The motion to strike is confined solely to the allegations of the First Amended
Complaint. (CCP § 437(a).)

In this personal injury action arising out of a motor vehicle accident, Defendant moves
to strike punitive damages allegations and his prayer for relief seeking punitive
damages Plaintiffs allege that on the date of the subject incident, Defendant
“consumed alcoholic beverages to the point of intoxication and/or impairment with the
knowledge that he would thereafter operate a motor vehicle.” (FAC p. 5 Ex-2.) He
also alleges that Defendant “knew or should have known that operating a motor
vehicle in said intoxicated/impaired condition was likely to result in injuries to other
persons. Defendant thereafter did operate a motor vehicle in said willful and

conscious disregard for the safety of others and said conduct causes or contributed to
those injuries and damages herein alleged. This despicable conduct constitutes
malice within the meaning of Civil Code 3294(c).) (Id.)

Punitive damages are available in personal injury actions against one who drove while
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 beverages 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.)

Defendant argues that Plaintiff has failed alleged to allege facts similar to those in
Taylor where the defendant was an alcoholic, “well aware of the serious nature of his
alcoholism…[and his]…tendency, habit, history, practice, proclivity, or inclination to
drive a motor vehicle while under the influence of alcohol” and had also been involved
in a previous accident while he was driving under the influence and had been arrested
for drunk driving. ( Taylor, supra, at 893.) However, Taylor did not lay down any
specific guidelines for what exactly must be alleged in connection with such a claim for
punitive damages and indeed as stated above, even made clear that the “effect may
be lethal whether or not the driver has a history of drunk driving incidents.” (Id. at
898.) Plaintiff has not, as Defendant attempts to argue, merely alleged that Defendant
was intoxicated while driving. Thus, his citation to Dawes v. Superior Court (1980) 111
Cal.App.3d 82, is not helpful to his cause as that case held that allegations of
“intoxication, excessive speed, driving with defective equipment or the running of a
stop signal, without more, do not state a cause of action for punitive damages.” (Id. at
90.) Indeed, case law has held that allegations such as Plaintiff’s allegations in the
FAC are in fact sufficient. Allegations that a defendant “voluntarily consumed alcohol,
knowing he would then operate a motor vehicle, and drove while drunk, knowing the
safety hazard he created and aware of the probable consequences of his conduct,
which he willfully and deliberately failed to avoid” are sufficient under Taylor, supra, 24
Cal.3d 890. (Busboom v. Superior Court (1980) 113 Cal.App.3d 550, 552-553.)
Plaintiff has alleged such facts. Plaintiff’s failure to plead that Defendant had a history
of alcohol abuse, or any prior accidents or convictions for drunk driving, does not mean
that he has not stated a claim for punitive damages.

Defendant’s final argument that the 1987 amendment to Civil Code § 3294 to include
the term “despicable” renders Plaintiff’s allegations insufficient is rejected. Indeed,
Defendant’s argument is premised on the assumption that Plaintiff is attempting to
allege that the mere fact of Defendant’s intoxication entitles Plaintiff to allege a claim
for punitive damages. Indeed, Defendant argues that “[e]ven if Taylor can be read to
suggest that punitive damages may have been automatically recoverable from an
intoxicated driver, such an interpretation is no longer the current state of the law”
because Civil Code § 3294 was amended to include “despicable.” (Mot. 7:13-26.)
However, Plaintiff has not simply alleged that Defendant was intoxicated. Plaintiff
alleged that Defendant became intoxicated knowing that he would later operate a
motor vehicle and that his intoxicated condition would likely result in injury to others.
(FAC p. 5 Ex-2.) For pleading purposes, Plaintiff has alleged facts demonstrating
despicable conduct on Defendant’s part.

Punitive damages are available in an action for the breach of an obligation not arising
from contract, where it is proven by clear and convincing evidence that the defendant
has been guilty of oppression, fraud, or malice. Under Civil Code sec. 3294(a)(1)
“Malice” means 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.(2) “Oppression” means
despicable conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person’s rights. (3) “Fraud” means 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. Civ Code sec. 3294(c). A claim for punitive damages can be
premised on despicable conduct involving consumption of alcoholic beverages. (
Taylor, supra, 24 Cal.3d at 899.) As already addressed, in Taylor v. Superior Court
the California Supreme Court held that one who voluntarily commences, and thereafter
continues, to consume alcoholic beverages to the point of intoxication, knowing from
the outset that he must thereafter operate a motor vehicle demonstrates, in the words
of Dean Prosser, “such a conscious and deliberate disregard of the interests of others
that his conduct may be called wilful or wanton.” (Id.; see, also Burg v. Municipal
Court, (1983) 35 Cal. 3d 257, 262.)

Plaintiff’s request for sanctions pursuant to CCP 128.5 is denied. That section only
applies to actions initiated on or before December 31, 1994.

The motion is denied.

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.