Case Number: BC540731    Hearing Date: September 02, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

CHRISTINE GURGANUS,

Plaintiff(s),
v.

MARIE ELYSE HAMM, et al.,

Defendant(s). Case No.: BC540731

Hearing Date: September 2, 2014

[TENTATIVE] RULING RE:

DEFENDANT MARIE ELYSE HAMM’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

Defendant Marie Elyse Hamm’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED with 20 days’ leave to amend.

Discussion

Civil Code Section 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . . ” 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. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

In Taylor, the California Supreme Court held that driving while intoxicated can, under certain circumstances, support an award of punitive damages because it evidences malice. (24 Cal.3d at 892.) Specifically, in Taylor the Complaint alleged that the defendant was an alcoholic with a history of driving while under the influence of alcohol and he was aware of the dangerousness of his driving while intoxicated. The Court also found, in holding the allegations of the complaint sufficient to support a punitive damages claim:

The complaint further alleged that Stille had previously caused a serious automobile accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident herein, Stille had recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.

(Id. at 893.)

While the Court in Taylor found that the complaint had sufficiently alleged malice to support a punitive damages claim, the case does not stand for the fact that a claim of driving while intoxicated always supports a finding of malice. As the court held in Dawes v. Superior Court (Mardian) ((1980) 111 Cal.App.3d 82, 89:

[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 form Mardian’s conduct under the circumstances alleged was probable.

In Dawes, Court found that the trial court should not have stricken the punitive damages claim because of the additional allegations as to how Mardian was driving, thereby creating this probable risk of injury to others in his intoxicated state. (Id. at 89-90.)

Here, Plaintiff merely alleges that Defendant was driving while intoxicated. (Complaint, p.5.) There are no other factual allegations regarding Defendant’s conduct in the Complaint, although additional facts are asserted in the opposition. (Opp., p. 2:7-9.) Rather, the Complaint makes conclusory statements that Defendant “acted with malice by operating a motor vehicle under the influence of an intoxicant.” (Complaint, p. 5.) These allegations do not rise to the level of the conduct alleged in Taylor or Dawes, such they adequately support a claim for punitive damages.

Defendant is ordered to give notice.

DATED: September 2, 2014

_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court