YIU MING PANG v. MICHAEL ROBERT RABBIOSI
Case No.: 1-13-CV-250453
DATE: May 6, 2014
TIME: 9:00 a.m.
DEPT.: 3

The Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. All material facts properly pled are accepted as true, but not contentions, deductions or conclusions of fact or law.

Defendant’s motion to strike the SAC’s request for punitive damages in paragraph 14.a.(2) of the judicial council form and the exemplary damages attachment is GRANTED. Paragraph 14.a(2) once again simply references the exemplary damages attachment. The attachment claims that in driving negligently (the only causes of action alleged are negligent operation of a motor vehicle and general negligence) “Defendant either intended to cause injury or plaintiff or defendant’s action of driving with extreme recklessness and bringing his vehicle to a complete stop on a highway with no cause or reason was despicable conduct because there was no traffic stopping or created an immediate threat to Defendant so as to cause him to stop his vehicle. His actions were reprehensible and carried on with a willful and conscious disregard of the rights or safety of others in blatant violation of the law.” This is a series of legal conclusions that the Court does not simply accept as true at the pleading stage.

As stated in the order granting Plaintiff’s prior motion to strike with leave to amend, “[t]o support punitive damages, the complaint…must allege ultimate facts of the defendant’s oppression, fraud, or malice.” Cyrus v. Haveson (1976) 65 Cal. App. 3d 306, 316-317, internal citation omitted. “‘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.’” Scott v. Phoenix Schools, Inc. (2009) 175 Cal App 4th 702, 716, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 894–895.

Of these only “malice” could potentially be applicable here, defined in Civ. Code §3294(c)(1) as: “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.” Emphasis added. Despite the reference to “intent” in the attachment, only negligence based claims are alleged. Accordingly, only “despicable” conduct by Defendant could be the basis for an award of punitive damages. Despicable as used in §3294(c)(1) is an additional requirement applied to actions taken in disregard of others’ rights or safety before the perpetrator can be found subject to punitive damages. Punitive damages are appropriate only if a defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy.

The mere carelessness or ignorance of the defendant (such as that involved in Defendant’s misdemeanor violation of the Vehicle Code) does not justify punitive damages. “Although the circumstances in a particular case may disclose similar willful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” Taylor, supra, at 899-900. The SAC at most describes reckless disobedience of traffic laws. In the traffic context only circumstances such as driving while intoxicated have been found to be sufficiently outrageous or despicable so as to support a request for punitive damages. See Taylor, supra, at 895-897 (“In order to justify an award of punitive damages on this basis [malice], the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. . . . [W]e have no difficulty concluding that [the pleadings] contain sufficient allegations upon which it may reasonably be concluded that defendant consciously disregarded the safety of others. There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. 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 faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.”) See also Lackner v. North (2006) 135 Cal. App. 4th 1188, 1212 (unintentional tort case–reckless snowboarding collision; noting lack of authority post-Taylor, court held conduct was not “despicable” because defendant lacked “base or evil intent,” and, therefore, punitive damages could not be awarded and summary adjudication of the issue was granted to defendant.)

Further leave to amend is DENIED as there is no indication that the alleged facts of this case can support a request for punitive damages and Plaintiff’s bare request for additional leave (Opp. at 4:11-15) is insufficient. See Medina v. Safe-Guard Products (2008) 164 Cal App 4th 105, 112 fn. 8 (“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”)