Lucy Trinh v. Christopher Winkler

Case Name: Trinh v. Winkler

Case No.: 1-14-CV-258512

 

Defendant Christopher Winkler (“Defendant”) moves the Court for an order striking the claims for punitive damages contained in the First Amended Complaint (“FAC”) filed by plaintiff Lucy Trinh (“Plaintiff”).

 

This personal injury action arises from an automobile accident. On September 27, 2012, Defendant rear ended Plaintiff while driving north bound on SR-85 in San Jose, California. At the time of the accident, Defendant was intoxicated. On June 18, 2014, Plaintiff filed the operative FAC. The FAC, like the original complaint, is filed on a form provided by the Judicial Council and seeks punitive damages.

 

Defendant asserts that the FAC fails to set forth sufficient facts to support an award of punitive damages. More specifically, Defendant contends that Plaintiff has failed to plead facts that, if true, would support a finding that Defendant acted with malice, which would be required to recover punitive damages under Civil Code section 3294 in this case. For the reasons set forth below, the Court agrees.

 

The Civil Code authorizes punitive damages “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); see also College Hospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 721.) Civil Code section 3294 defines “malice” as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294, subd. (c)(1).)

 

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.) Recitation of the statutory terms of “oppression, fraud or malice” in a pleading is not sufficient—the complaint must plead facts to support the allegation. (See Blegen v. Sup. Ct. (1981) 125 Cal.App.3d 959, 963; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [holding that specific factual allegations are required to support a punitive damage claim].) However, the complaint should be read as a whole, and conclusory allegations may suffice when read in context with the facts alleged as to defendant’s wrongful conduct. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6-7.)

 

Two cases exist that address whether a plaintiff had sufficiently pled malice for the purposes of seeking punitive damages against an intoxicated driver: Taylor v. Superior Court (1979) 24 Cal.3d 890; and Dawes v. Superior Court (1980) 111 Cal.App.3d 82.

 

In Taylor, the California Supreme Court addressed the following issue: “whether punitive damages (Civ. Code, § 3294) are recoverable in a personal injury action brought against an intoxicated driver.” (Taylor, supra, 24 Cal.3d at p. 892.) The Court answered that question in the affirmative, holding that the act of operating a motor vehicle while intoxicated may constitute an act of malice “if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id.) Having concluded that punitive damages were potentially available, the Court next analyzed whether the facts, as pled, were sufficient to withstand the defendant’s demurrer, which the trial court had granted.

 

The plaintiff in Taylor alleged the following facts: the car driven by the defendant collided with the plaintiff’s car, causing serious injuries; at the time of the collision, the defendant was drinking an alcoholic beverage and under its influence; the defendant had been an alcoholic for a substantial period of time and was well aware of the serious nature of his alcoholism; the defendant had a history and practice of driving a motor vehicle while under the influence of alcohol; the defendant had previously caused a serious automobile accident while under the influence of alcohol; the defendant had been convicted numerous times for driving under the influence; notwithstanding his alcoholism, the defendant accepted employment requiring him to call on various commercial establishments where alcoholic beverages were sold, and to transport such beverages; and the defendant was simultaneously driving while consuming an alcoholic beverage. (Id., at p. 893.) Based upon these allegations, the Court stated that, after “[e]xamining the pleadings before us, we have no difficulty concluding that they contain sufficient allegations upon which it may reasonably be concluded that defendant consciously disregarded the safety of others.” (Id., at p. 896.) In other words, the Court found that the plaintiff had sufficiently pled a claim for punitive damages and that the trial court’s sustaining of the demurrer was improper.

 

In Dawes, the second case addressing the issue, and decided the year of the California Supreme Court’s decision in Taylor, the plaintiffs made the following allegations: at around 1:30 in the afternoon in the month of June, the 13-year-old plaintiff was struck by car driven by the defendant while walking his bicycle on the sidewalk near the entrance to Doheny State Park at Dana Point Harbor; the vehicular and pedestrian traffic was heavy at the time and there were many pedestrians and bicyclists in the vicinity; the defendant, while intoxicated, was driving a Ferrari automobile and made a right hand turn without stopping at a stop sign; the defendant was zigzagging in and out of traffic, and traveling in excess of 65 miles per hour in a 35 mile per hour zone; the defendant knew that he was intoxicated and knew he was driving 65 miles an hour in a 35 mile an hour zone on a Sunday afternoon in a marina visited by many persons; and the plaintiff suffered personal injuries as a result of the defendant’s conduct. (Dawes, supra, 111 Cal.App.3d 82, 85-86.)

 

On a motion to strike filed by the defendant, the trial court in Dawes struck the plaintiffs’ punitive damages claim and the plaintiffs sought review by the court of appeal. (Id., at p. 85.) On review, the court of appeal first noted that the California Supreme Court had recently held in Taylor that punitive damages may be available in drunk driving cases. (Id., at p. 88.) The court then noted that an allegation that a defendant was knowingly driving intoxicated, standing alone, does not constitute malice for purposes of punitive damages. (Id., at p. 90.) According to the court, while “[t]he risk of injury to others from ordinary driving [] intoxicated is certainly foreseeable, [] it is not necessarily probable.” (Id., at p. 89, emphasis added.) The court did not draw a clear line for when an intoxicated person’s actions create a probable risk of injury to others, but if held that under the facts alleged, the defendant’s actions did create a probable risk of injury, i.e., the plaintiffs had sufficiently pled the existence of malice. Accordingly, the court of appeal issued a peremptory writ directing the trial court to vacate the order striking the claim for punitive damages. (Id., at p. 92.)

 

Here, under the heading “description of reasons for liability” in the form complaint, Plaintiff alleges the following facts: “Defendant consumed significant amount of alcohol and was driving while intoxicated when he crashed into plaintiff’s vehicle from behind causing damages and injury to plaintiff[;] Defendant was criminally prosecuted and was found guilty and an Order of Restitution was entered in People vs. Paul Winkler No. C1244045[;] Defendant was aware of the probable dangerous consequences of his conduct[;] [and] Defendant knew or should have known that his conduct may cause serious bodily injury to others, and that he willfully and deliberately failed to avoid those consequences.” (FAC at p. 5.)

 

Other than the date and location of the accident, the FAC contains no other factual allegations. Comparing the above sparse allegations to those considered in both Taylor and Dawes, it is clear that Plaintiff has not set forth facts that, if true, would be sufficient to sustain a finding of malice under Civil Code section 3294. For instance, in Dawes, the court looked at the time of day the accident occurred, the time of year (which was relevant because the accident occurred near the beach and more people go to the beach in the summer), the amount of vehicular and pedestrian traffic present at the time off the accident, the nature of the defendant’s driving (zigzagging in and out of traffic), and the rate of speed that the defendant was driving (65 miles per hour in a 35 miles an hour zone). It was the defendant’s intoxication plus those additional circumstances that gave rise to a finding that the plaintiffs had sufficiently pled malice. Here, Plaintiff’s complaint alleges that Defendant was intoxicated and that he was found guilty for driving under the influence. In other words, no facts similar to those considered by the courts in Taylor and Dawes—in addition to the fact that the defendants were intoxicated—have been pled in this case.

 

Based upon the above discussion, Defendant’s motion to strike is GRANTED. Plaintiff shall have 10 DAYS LEAVE TO AMEND her complaint.

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