Case Number: B19STCV05140 Hearing Date: September 17, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

BRETT TRAVIS,

Plaintiff(s),

vs.

BERNARD THOMAS HENRY, JR., ET AL.,

Defendant(s).

Case No.: 19STCV05140

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO STRIKE WITHOUT LEAVE TO AMEND

Dept. 3

1:30 p.m.

September 17, 2019

1. Allegations of the Complaint

Plaintiff, Brett Travis filed this action against Defendants, Bernard Thomas Henry, Jr. and EAN Holdings, LLC for damages arising out of an automobile accident. Plaintiff subsequently dismissed his complaint against EAN Holdings, and the complaint remains pending against Henry only at this time.

Plaintiff’s original complaint contained a prayer for punitive damages based on the allegation that Defendant was intoxicated at the time of the subject accident. Defendant moved to strike the prayer and related allegations. Plaintiff failed to oppose the motion, and the Court issued a tentative ruling granting the motion to strike without leave to amend. However, prior to the hearing, the parties entered into a stipulation permitting Plaintiff to file a First Amended Complaint after the deadline to do so had otherwise passed.

Plaintiff’s operative FAC continues to seek punitive damages against Defendant; the prayer for punitive damages is premised on the allegation that Defendant was (a) driving while intoxicated, (b) driving at an excessive rate of speed, and (c) “showing off” to “exhibit speed.”

2. Motion to Strike

At this time, Defendant moves to strike the prayer for punitive damages and related allegations against him.

a. Law Governing Punitive Damages in the Context of Driving Under the Influence

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.

To properly allege punitive damages in a motor vehicle accident action, a plaintiff simply needs to “establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” Id., at p. 896. If the essential gravamen of the complaint is that “Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby” then this is sufficient to allege punitive damages. (Id.) While a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases. Id.

Taylor justified imposing punitive damages upon the “deliberate” drunk driver for many reasons, including the high degree of foreseeability of injury and damage flowing from driving while intoxicated. The court says the essential allegation is that defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. The decision also discusses the grave havoc wrought by intoxicated drivers nationwide and equates the act of deliberately driving while under the influence with a conscious and deliberate disregard of the interests of others which may be described as willful or wanton. Such conduct, the court said, has traditionally been a basis for awarding punitive damages. Herrick v. Superior Court (1987) 188 Cal.App.3d 787, 790.

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] 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. The effect may be lethal whether or nor the driver had a prior history of drunk driving incidents.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897. “[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.” 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.

The court went on to note, “In contrast, in the case at bench, as previously noted, petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. Justice Franson aptly noted the distinction in his article on punitive damages in vehicle accident cases: 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. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection crowded with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise. This would be particularly true if the defendant had not been drinking, or, if drinking, he was not under the influence to the point where he was incapable of being aware of the situation confronting him. Under these circumstances, it reasonably might be said that the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others.”

Further complicating the matter, in 1987, after all of the foregoing cases were decided, 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.

b. Analysis

The complaint herein does not allege Defendant’s level of intoxication, and fails to allege any additional aggravating factors. It merely alleges that Defendant consumed alcohol prior to the accident, and was traveling in excess of the speed limit. The motion to strike is therefore granted.

Plaintiff, in opposition to the motion, argues leave to amend should be granted if the Court is inclined to grant the motion. Plaintiff indicates he would amend the complaint to add facts showing that Defendant, during the traffic investigation, (a) changed his statements during the investigation, and (b) was drunk. The fact that Defendant was intoxicated is already alleged in the complaint. Allegations concerning statements made to the officer are irrelevant to Plaintiff’s claimed damages in the case, and therefore would not support leave to amend. Because it does not appear further leave to amend would alter the Court’s ruling, leave to amend is denied.

Defendant is ordered to file an answer to the FAC, with the prayer for punitive damages and related allegations deemed stricken, within ten days.

Defendant is ordered to give notice.