Defendants Julia Barman, Fariborz Barman and Barbara Otto (collectively, “Defendants”) move to strike plaintiff Colleen Ferris’ (“Plaintiff”) request for punitive damages in the first amended complaint (“FAC”).

On November 22, 2013, Plaintiff filed the FAC for personal injuries arising out of an automobile accident that occurred on June 29, 2011 in San Jose. (FAC, ¶ MV-1.) Plaintiff alleges that the accident was caused by defendant Julia Barman’s usage of a cell phone while she was driving, which prevented her from being aware of the traffic conditions in around her. (Id., at ¶ Ex-2.) Plaintiff seeks exemplary damages based on Julia Barman’s use of her cell phone while driving despite her purported knowledge that doing so was unlawful and dangerous, alleging that such actions constitute “despicable conduct that was done with a conscious disregard of the safety and rights of others.” (Id.)

Defendants’ motion to strike Plaintiff’s request for punitive damages is GRANTED WITHOUT LEAVE TO AMEND. Punitive damages are warranted only where a defendant intends to cause injury or engages in despicable conduct with a conscious disregard for the rights and safety of others. (Civ. Code, § 3294; see also Mock v. Mich. Millers Ins. Co. (1992) 4 Cal.App.4th 306, 330-331.) Where, like here, a prayer for punitive damages is supported by allegations of unintentional conduct, the plaintiff must plead specific facts showing that the defendant was aware of the probable dangerous consequences of her conduct, and willfully and deliberately failed to avoid those consequences. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Plaintiff does not allege specific facts which demonstrate or from which it can be inferred that Ms. Barman was actually aware of the probable dangerous consequences of her actions, pleading only in the most conclusory of terms that she was. This is insufficient to state a claim for punitive damages. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [stating that a claim for punitive damages must be alleged with specificity].)

Although it is generally recognized that driving while using a cell phone is unsafe, there is no reason to believe that doing so poses the same sort of “demonstrable and almost inevitable risk upon the innocent public” as driving under the influence of alcohol, the conduct from which the court in Taylor v. Superior Court (1979) 24 Cal.3d 890, the case primarily relied upon by Plaintiff, held that it may presumed as a matter of law that the defendant acted with a conscious disregard for the rights and safety of others whether or not he has experiences which place him on notice of the probable dangerous consequences of his behavior. (Taylor, 24 Cal.3d at 897.) Leave to amend is denied because Plaintiff has already been given an opportunity to amend her pleading and fails to demonstrate that defects with the pleading can be cured through amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [stating that it is a plaintiff’s burden to show how defects with a challenged pleading may be cured through amendment].)