Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Miranda Alexus Baro v. Lindsley Fallon Wessberg, et al.
Case No: 19CV03993
Hearing Date: Tue Oct 29, 2019 9:30

Nature of Proceedings: Motion Strike Portions of Plaintiff’s Complaint

Motion to Strike Portions of Plaintiff’s Complaint

ATTORNEYS:

Juan J. Huerta for Plaintiff Miranda Alexus Baro

Allison Lee for Defendants Lindsley Fallon Wessberg and Richard Rosenwald

RULING: Defendants’ motion to strike the punitive damages allegations in the complaint is granted as set forth herein.

BACKGROUND

This is a personal injury action arising out of an automobile versus pedestrian collision. During the late afternoon of November 29, 2018, plaintiff Miranda Baro was walking to her job as a waitress at a restaurant in downtown Santa Barbara. Plaintiff came to the corner of Victoria and Garden Streets and was waiting to cross Garden Street from east to west when defendant Lindsley Wessberg (“Wessberg”) approached the same intersection from the north, driving a Fiat 500. After Wessberg came to a complete stop, plaintiff began crossing the street. When plaintiff was in front of Wessberg’s vehicle, defendant suddenly accelerated and forcefully struck plaintiff, knocking her to the ground and causing her to sustain fractures and head trauma. The vehicle Wessberg was driving is owned by defendant Richard Rosenwald (“Rosenwald”).

On July 31, 2019, plaintiff filed her complaint for (1) motor vehicle liability, (2) general negligence, and (3) reckless misconduct. In the negligence claim, plaintiff alleges that Rosenwald negligently entrusted his vehicle to Wessberg, knowing that she was unfit to operate a motor vehicle. The complaint includes an “Exemplary Damages Attachment.” In the attachment, plaintiff alleges that Wessberg was driving recklessly while texting or otherwise using a cell phone or other wireless device. Plaintiff alleges that Wessberg had full knowledge that such actions, including texting, could lead to serious injury and damage to persons and property. Plaintiff requests that punitive damages be awarded against defendants.

By this motion, defendants move to strike the punitive damages allegations on the ground that the complaint fails to allege sufficient facts to warrant such relief. Plaintiff opposes the motion.

ANALYSIS

Code of Civil Procedure Section 435, subdivision (b)(1), provides that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” The grounds for a motion to strike are set forth in Code of Civil Procedure Section 436, which provides:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

“(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

“(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

For purposes of a motion to strike, “irrelevant” matter includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” Code Civ. Proc. §431.10, subds. (b)(3), (c).

In the present case, defendants move to strike the punitive damages allegations in the complaint. Defendants contend that the complaint is devoid of any facts that would support a claim for punitive damages. Under Civil Code Section 3294, subdivision (a), punitive damages are recoverable only where it is shown that the defendant acted with malice, oppression, or fraud. While fraud is not alleged in the complaint, plaintiff also fails to allege any facts amounting to malice and oppression in support of her reckless misconduct claim. “Malice” is defined by statute to mean 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). “Oppression” is defined to mean despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Civ. Code §3294, subd. (c)(2).

The law does not favor punitive damages and they should be awarded with the greatest caution. Beck v. State Farm Mutual Automobile Insurance Company (1976) 54 Cal.App.3d 347, 355. Further, mere negligence, or even gross negligence, is not sufficient to justify an award of punitive damages. Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894. Rather, it must be shown that the defendant’s acts amounted to “despicable conduct” and/or were intended to cause injury to the plaintiff or were done with a willful and conscious disregard of the rights or safety of others. Code §3294, subd. (c)(1), (2). “Despicable conduct” is conduct that is so “base,” “vile,” or “contemptible” that “it would be looked down upon and despised by ordinary decent people.” American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.

In support of her punitive damages claim, plaintiff alleges:

● Wessberg operated her vehicle while distracted, occupied, or involved with texting, internet browsing, engaging in social media, or otherwise using a cell phone or other wireless device.

● Wessberg had full knowledge that such actions, including texting, could lead to serious injury to persons and/or property.

● Wessberg engaged in the use of a wireless communication device while operating a vehicle despite her knowledge of the safety hazards and dangers it created to others.

● Wessberg acted willfully and with malice and oppression.

(Comp., p. 7, ¶EX-2.)

Plaintiff argues that “distracted driving” is analogous to drunk driving and cites Taylor v Superior Court (1979) 24 Cal.3d 890 as authority for the argument that punitive damages are warranted in this case. In Taylor, the California Supreme Court addressed the specific question of “whether punitive damages . . . are recoverable in a personal injury action brought against an intoxicated driver” and concluded that operating a motor vehicle while intoxicated may constitute an act of “malice” under Civil Code Section 3294. In holding that the complaint stated a claim for punitive damages, the Supreme Court stated:

“Examining 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. There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] One who willfully 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 896-897.

Taylor, however, is distinguishable from the present dispute. The complaint in that case alleged that the defendant caused the collision with the plaintiff’s vehicle while driving under the influence of alcohol, that the defendant had been arrested and convicted for drunken driving on numerous prior occasions, that the defendant had recently completed a period of probation which followed a drunk driving conviction, and that at the time of the collision the defendant was drinking an alcoholic beverage. Id., at 893. In contrast, here, the complaint alleges only that Wessberg drove while using her cell phone and that plaintiff was injured as a result. (There are no allegations that Rosenwald was involved in the accident.) While the complaint alleges that Wessberg was using her cell phone despite her knowledge of the safety hazards and that she acted “willfully and with malice and oppression,” these allegations are conclusory and insufficient to show that Wessberg acted with despicable conduct or had the intent to cause harm or injury to plaintiff. Cell phone usage while driving may be negligent, even grossly negligent, but it is not an act of malice or oppression.

Based on the foregoing, the Court will grant defendant’s motion to strike the punitive damages allegations in the complaint. The following portions of the complaint are ordered stricken:

1. Page 3, paragraph 10.f: “Reckless conduct and attendant exemplary damages”;

2. Page 3, paragraph 14.a.(2): “punitive damages”;

3. Third Cause of Action for Reckless Misconduct and/or Despicable Conduct, in its entirety; and

4. Exemplary Damages Attachment, in its entirety.

Plaintiff’s opposition fails to allege any specific facts beyond the alleged cell phone usage and therefore the motion to strike is granted without leave to amend. Lastly, the Court finds that defense counsel complied with the meet and confer requirements of Code of Civil Procedure Section 435.5 before filing the motion to strike.