Case Number: BC517221 Hearing Date: May 19, 2014 Dept: 92

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

GERMAINE ABOOD, ET AL.,
Plaintiff(s),
vs.
AMI VICTOIRE HOVLAND, ET AL.,
Defendant(s).

Case No.: BC517221

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

Dept. 92
1:30 p.m. — #18
May 19, 2014

Defendant’s Motion to Strike is Granted With Leave to Amend. Plaintiffs are 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
Plaintiffs, Germaine and Nicholas Abood filed this action against Defendant, Ami Victoire Hovland 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 Moving Defendant, Hovland was intoxicated at the time of the subject accident. The complaint alleges, “according to the police report the defendant also violated CVC 23152 with malicious intent when deciding to drive her vehicle, being that she was under the influence of alcohol.”

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 may 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.

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 motion to strike is therefore granted. Leave to amend is granted if and only if Plaintiff can allege aggravating factors in compliance with Dawes.

Dated this 19th day of May, 2014

Hon. Elia Weinbach
Judge of the Superior Court