Case Name: Lucero v. Martinez
Case No.: 2015-1-CV-283137

Defendant Pedro Martinez (“Defendant”) moves to strike plaintiff Juan Pablo Lucero’s (“Plaintiff”) request for punitive damages from his first amended complaint (“FAC”).

This is a personal injury action arising out of a motor vehicle accident. According to the allegations of the judicial form complaint, on October 24, 2013, Plaintiff was a passenger in a vehicle driven by Defendant and was severely injured when they were involved in an accident on Capital Expressway in San Jose. Defendant was driving under the influence of alcohol at the time and subsequently pleaded no contest to violating Vehicle Code section 23153. On June 7, 2016, Plaintiff filed the FAC asserting claims for negligence arising out of a motor vehicle accident.

On July 1, 2016, Defendant filed the instant motion to strike Plaintiff’s request for punitive damages and all allegations relating thereto, including references to DUI and alcohol. (Code Civ. Proc., §§ 435 and 436.) Plaintiff opposes the motion.

In moving to strike the aforementioned allegations, Defendant contends that the allegations of the FAC are insufficient to support a finding of malice or despicable conduct necessary to support the recovery of punitive damages. In opposition, Plaintiff argues to the contrary, asserting that the allegation that Defendant drove while intoxicated provides a sufficient factual basis for imposing such damages.

As a general matter, punitive damages are permitted in “an action for breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice …” (Civ. Code, § 3294, subd. (a).) A plaintiff seeking punitive damages must make specific factual allegations in the complaint supporting a conclusion that the defendant acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “Oppression” and “malice” sufficient to support an award of punitive damages do not require an intent to injure in all cases; nonintentional torts may provide a basis for punitive damages when the defendant’s conduct constitutes a conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1) and (2); Peterson v. Superior Court (1982) 31 Cal.3d 147, 158, citing Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895.) Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, of should know, it is highly probable that harm will result. (Peterson, supra, at 158.)

Here, the entirety of Plaintiff’s allegations of oppressive or malicious conduct by Defendant are that he drove while intoxicated. There are no allegations of intentional conduct, and no additional facts from which a conscious disregard can be inferred. Simple drunk driving, without more, is insufficient. (See Taylor v. Superior Court, supra, 24 Cal.23 890; see also Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88-89.) In Taylor, for example, the court determined that the plaintiff had pleaded a sufficient basis for the imposition of punitive damages by asserting, in addition to allegations that the defendant was intoxicated at the time of the incident which caused the plaintiff’s damages, allegations that he had a history of prior drunk driving offenses and alcohol-related car accidents, and had accepted employment that involved the operation of a motor vehicle while transporting alcoholic beverages. The court reasoned that “one who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, …reasonably may be held to exhibit a conscious disregard of the safety of others.” (Taylor v. Superior Court, 24 Cal.3d at 897.)

Here, in contrast, there are no allegations regarding Defendant’s knowledge of his subsequent use of his vehicle while drinking to the point intoxication. The fact that Defendant apparently pleaded no contest to a charge of driving while intoxicated does not otherwise establish this knowledge. Consequently, Plaintiff has not pleaded facts sufficient to demonstrate malice or oppression and thus to support a claim for punitive damages. Accordingly, Defendant’s motion to strike Plaintiff’s request for punitive damages is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.