Case Number: BC535796    Hearing Date: July 17, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JULIE ORR,
Plaintiff(s),
vs.
TERENCE ROCCO KERWIN, ET AL.,
Defendant(s).

Case No.: BC535796

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO STRIKE WITH LEAVE TO AMEND

Dept. 92
1:30 p.m. — #16
July 17, 2014

Defendant’s Motion to Strike is Granted With Leave to Amend. Plaintiff is ordered to file an amended complaint within twenty (20) days. Defendant is ordered to file a responsive pleading within the statutory time thereafter.

1. Facts
Plaintiff, Julie Orr filed this action against Defendant, Terence Rocco Kerwin for damages arising out of an automobile accident.

2. Motion to Strike
Plaintiff’s complaint contains a prayer for punitive damages based on the allegation that Defendant was intoxicated and was texting at the time of the subject accident. Additionally, Plaintiff alleges Defendant left the scene of the accident before the police arrived, out of fear that he would be arrested.

a. Intoxication
Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96.) The Taylor court concluded that the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences. “One who wilfully 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.” (Id., at p. 897.)

Taylor fell short, however, of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The 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. Emphasis added.

Notably, a subsequent decision 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. The risk of injury to others from Mardian’s conduct under the circumstances alleged was probable.” Dawes v. Superior Court (1980) 111 Cal.App.3d 82.

Further complicating the matter, in 1987 the legislature amended Civil Code §3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support imposition of punitive damages. Absent additional allegations, the Court cannot find Defendant’s alleged behavior to meet the standard for imposition of punitive damages.

The complaint does not allege Defendant’s level of intoxication, and fails to allege any additional aggravating factors. The driving under the influence allegations therefore fail to support a claim for punitive damages.

b. Texting
Plaintiff also alleges Defendant was texting while driving. Plaintiff fails, however, to show how texting while driving, though dangerous, rises to the level of malicious. The texting allegations, therefore, do not rise to the level sufficient to support a claim for punitive damages.

c. Leaving the Scene
The complaint is also based on the allegation that Defendant left the accident before the police arrived. Notably, the complaint is not clear in this regard, but it appears Defendant did not engage in “hit and run” behavior – it appears he stopped and gave Plaintiff his insurance information, but did not wait for the police to arrive. At page 8 of the complaint, Plaintiff alleges details concerning her conversation with Defendant after the accident, so it does not appear Defendant left the scene of the accident in a hit-and-run manner. In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679, the court held that the act of hit-and-run only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run. For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood, death, etc. If, however, the accident causes immediate soft tissue damage, no amount of aid would reduce or minimize the future damages, and the act of hitting and running would not give rise to additional damages. If the act of hitting and running, in and of itself, does not give rise to a tort, then it logically follows that the act cannot give rise to a claim for punitive damages.

In this case, there was no hit-and-run. Plaintiff failed to allege that Defendant’s act of leaving the scene of the accident before the police arrived exacerbated her damages or caused her additional damages. The allegations concerning leaving the scene of the accident, therefore, cannot support a claim for punitive damages.

d. Conclusion
The motion to strike is granted. Leave to amend is granted if and only if Plaintiffs can allege aggravating factors in compliance with Dawes, or can allege that Defendant’s decision to leave the scene of the accident caused additional damages to Plaintiffs over and above the damages sustained due to the accident itself.

Dated this 17th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court