Case Number: BC527593 Hearing Date: May 08, 2014 Dept: 93

Defendants Jorge Luis Solorio, Jr. and Jeannine Solorio’s Motion to Strike is GRANTED with 20 days’ leave to amend.
Civil Code § 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, the complaint in Taylor alleged that
[Defendant ]Stille is, and for a substantial period of time had been, an alcoholic “well aware of the serious nature of his alcoholism” and of his “tendency, habit, history, practice, proclivity, or inclination to drive a motor vehicle while under the influence of alcohol”; and that Stille was also aware of the dangerousness of his driving while intoxicated.

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. Furthermore, in Dawes v. Superior Court (Mardian), the Court of Appeals noted that facts on this level are distinguishable from facts that merely allege driving while intoxicated. (1980) 111 Cal.App.3d 82, 89-90. “Ordinary intoxicated driving” may create a risk of injury to others that is foreseeable, but not necessarily probable. Id. In Dawes, the defendant was alleged to have made a “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.” Id. at 89. These allegations also support a claim for punitive damages. Id. at 89-90.
Here, Plaintiff alleges that Defendant Solorio, Jr. was driving while intoxicated, as follows:

That plaintiff is informed and believes, and upon such information and belief herein alleges, that defendants JORGE LUIS SOLORIO, JR., JEANINE SOLORIO and JOHN DOES 1 through 10, and each of them, were under the influence of alcohol, and therefore, among others, unfit to operate, drive, control and maintain a motor vehicle or car on the public highways and streets in the State of California. (Please see Police Report, attached hereto as Exhibit A.)

That plaintiff is informed and believes, and upon such information and belief alleges, that on May 15, 2013, prior to the subject accident, defendant JORGE LUIS SOLORIO, JR. voluntarily and willfully consumed, and thereafter continued to consume, alcoholic beverages resulting in excessive blood alcohol level of said defendant to the point of intoxication, despite 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, in willful and conscious disregard of the rights and safety of others, including but not limited to, the plaintiff. That plaintiff is informed and believes, and upon such information and belief alleges, that after the subject incident, defendant JORGE LUIS SOLORIO, JR. left the scene of the accident without rendering assistance to his victim plaintiff IVAN WILLIAMS and/or leaving his information, all with the intention of escaping responsibility for his actions, and in willful and conscious disregard of the rights and safety of others, including, but not limited to, the plaintiff. Please see Police Report, attached hereto as Exhibit A.

That said defendants was aware of the obvious and apparent dangerous consequences of his conduct, and willfully and deliberately failed to avoid such consequences, by willfully operating his vehicle while excessively intoxicated.

That plaintiff is informed and believes, and upon such information and belief alleges, that defendant, JEANINE SOLORIO and JOHN DOES 1 through 10, and each of them, had advance knowledge of defendant JORGE LUIS SOLORIO, JR.’S unfitness to operate, drive and control a vehicle on the public highways and streets, and despite such knowledge, continued or allowed the operation and control of the aforesaid vehicle.

That said defendants had full knowledge of the risks and hazards and possible injurious consequences of their conduct.

Complaint, ¶ 15. These allegations are predominately generalized and conclusory statements that Defendants were aware of the obvious and apparent consequences of their conduct unsupported by any specific facts regarding their conduct. These allegations simply allege ordinary intoxicated driving, and do not rise to the level of malicious conduct as articulated in Dawes and Taylor. The Court does not minimize the dire impact of intoxicated drivers upon our highways, however, under Plaintiff’s argument, every motor vehicle case involving intoxicated driving would warrant punitive damages because the dangers of such driving are well known. This, however, is not the law.
Plaintiff also alleges that punitive damages are warranted based on Solorio, Jr.’s attempt to flee the scene. See Complaint, ¶ 12 and Exh. A, p. 9. Plaintiff points to Pelletti v. Membrila, where similar conduct (hit and run, DUI) was deemed sufficient to support a charge of willful misconduct against the defendant. (1965) 234 Cal.App.2d 606, 612-13. Pelletti characterized such conduct as “the grossest type of misconduct, which in our view provides direct evidence of the wanton state of mind of the defendant at the time of the accident and specific proof of his willingness to expose others to the probability of injury.” Id. However, in Pelletti, the driver struck and killed a pedestrian before fleeing the scene of the accident. Id. at 608. This is clearly distinguishable from the instant case, which involved Defendant Solorio, Jr. rear-ending Plaintiff. Complaint, Exh. A, p. 7. The circumstances of Pelletti are not sufficiently analogous to the instant case to support the allegation that Defendant Solorio, Jr.’s conduct was “despicable” under Cal. Civil Code § 3294. Therefore, the Motion to Strike is GRANTED.
Moving party is ordered to give notice.