Case Number: 19STCV05934 Hearing Date: May 31, 2019 Dept: 2

Defendants’ Motion to Strike Portions of Plaintiff’s Complaint, filed on 4/5/19 is GRANTED without leave to amend. Cal. Code Civil Procedure § 436. The court strikes paragraph 14(a)(2) of the complaint and the exemplary damages attachment at page 6.

The court has discretion to strike any irrelevant, false, or improper matter in any pleading or any part of a pleading not drawn or filed in conformity with the law. Cal Code Civ Procedure § 436.

To support a claim for punitive damages, Plaintiff must allege facts and circumstances showing conduct constituting malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166.

The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of others. Civ Code § 3294(a). Oppressive conduct is defined as “despicable conduct” that subjects a person to cruel and unjust hardship in conscious disregard of a person’s rights. Cal Civ Code § 3294(c).

The Complaint alleges that Defendant, Maxwell Kohler, was the driver of a vehicle in which Plaintiff was a passenger. Defendant was allegedly driving under the influence of an alcoholic beverage. He was booked. Complaint, page 5.

Plaintiff alleges that the owner of the vehicle, Lureline Kohler, negligently permitted Defendant Maxwell Kohler to operate the vehicle when she “knew or should have known” that he was unfit to drive. Complaint, page 5.

Plaintiff alleges that Mr. Kohler “knew or should have known,” that driving a vehicle while under the influence of alcohol and being impaired, created a substantial risk of harm to others. Complaint, page 6.

Plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others.” Dawes v. Superior Court, (1980) 111 Cal. App. 3d 82, 90

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. Taylor v. Superior Court (1979) 24 Cal.3d 890, 897.

“Malice” requires “more than a ‘willful and conscious’ disregard of the Plaintiff’s interests. The additional component of ‘despicable conduct’ must be found.’” College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.

The complaint does not assert facts that can be described as “despicable” which is conduct so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.

Punitive damages are appropriate if the tortious conduct rises to levels of extreme indifference to Plaintiff’s rights. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1051.

The alleged conduct of both Defendants do not rise to the level of “extreme indifference to Plaintiff’s rights.” American Airlines at 1051. Plaintiff alleges claims for negligence only. Negligence, gross negligence, or reckless conduct is insufficient to support the prayer for punitive damages. Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.

Moving party is ordered to give notice.