Case Number: 19STCV08999 Hearing Date: June 04, 2019 Dept: 4A

Motion to Strike without Demurrer

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 14, 2019, Plaintiff Robert Spedding (“Plaintiff”) filed a complaint against Defendant David John Ramos (“Defendant”) alleging negligence for an automobile collision that occurred on April 8, 2017.

On April 23, 2019, Defendant filed the subject opposed motion to strike punitive damages from Plaintiff’s complaint.

At the original hearing date on May 21, 2019, the Court found that Defendant had not submitted a sufficient meet and confer declaration pursuant to California Code of Civil Procedure section 435, subdivision (a). Accordingly, the hearing on the motion to strike was continued to June 4, 2019, and the Court ordered Defendant to meet and confer with Plaintiff either in person or telephonically by May 24, 2019, and to file a code-compliance meet and confer declaration by May 29, 2019.

Trial is set for September 20, 2020.

PARTY’S REQUEST

Defendant asks this Court for an order striking punitive damages from the complaint pursuant to California Code of Civil Procedure sections 435 and 436 and Civil Code section 3294.

LEGAL STANDARD

Any 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. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) Conclusory allegations are subject to motions to strike. (Covenant Care, Inc. v. Superior Court (2001) 107 Cal.Rptr.2d 291, 303 (superseded on other grounds by Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771).)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (citation omitted).)

Meet and Confer Requirement

California Code of Civil Procedure section 435.5(a) requires that, before filing a motion to strike, the moving party shall meet and confer in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

Punitive Damages

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294, subd. (a).)

“‘Oppression’ means 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).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code § 3294, subd. (c)(3).)

“Malice is defined in the statute as conduct 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.” (Coll. Hosp., Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code § 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (Coll. Hosp., Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“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. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

DISCUSSION

Meet and Confer Requirement

The Court finds that Defendant has submitted a sufficient meet and confer declaration pursuant to Code of Civil Procedure section 435, subdivision (a). (Grandy Decl., ¶¶ 2-4.)

Punitive Damages

It is alleged in the Complaint that prior to the automobile collision, Defendant “consumed substantial amounts of alcohol to the point of intoxication,” and that the injuries Plaintiff sustained from the incident “were caused by [Defendant’s] drunk driving.” (Compl., ¶ 8.) It is further alleged that Defendant “was consciously aware that he was consuming enough alcohol to result in a blood alcohol concentration over the legal limit,” that when Defendant “consumed his last drink, he was consciously aware that he was unfit to operate a motor vehicle,” and that Defendant “consciously decided to drive on the public roadways knowing that he had such blood alcohol concentration over the legal limit and he would almost certainly cause injury, damage, and potential death to members of the public.” (Compl., ¶ 8(a)-(c).) Defendant allegedly “made a conscious decision to drive despite knowledge of his actual and extensive alcohol consumption,” and “in conscious disregard for the safety of such persons and for the safety of Plaintiff.” (Compl., ¶ 8(d).)

The case Taylor v. Superior Court (1979) 24 Cal.3d 890 is instructive with respect to punitive damages for driving while under the influence. There, the court discussed punitive damages, and fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated. (Taylor, 24 Cal.3d at 892.) The Taylor court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. (emphasis added).)

Subsequently, in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, the court held that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle to the public streets is the same as the risk created by an intoxicated driver’s 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. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” In Dawes, the Court found that the risk of injury to others from the defendant’s conduct under the circumstances alleged was probable. (Id.)

The Dawes court went on to note, “. . . petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. Justice Franson aptly noted the distinction in his article on punitive damages in vehicle accident cases: ‘Allegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection crowded with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise. This would be particularly true if the defendant had not been drinking, or, if drinking, he was not under the influence to the point where he was incapable of being aware of the situation confronting him. Under these circumstances, it reasonably might be said 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.’” (Id., at 90.)

Plaintiff also cites the case Peterson v. Superior Court (1982) 31 Cal.3d 147 in support of his argument that the facts alleged in the Complaint support a claim for punitive damages. The Peterson court found that the complaint supported a claim for punitive damages where it was alleged that the defendant, after consuming alcohol, “drove with plaintiff in the vehicle at speeds in excess of 100 mph, and that the plaintiff objected to the high speed and demanded that defendant properly control the vehicle.” (Peterson, 31 Cal.3d at 162.) It was further alleged that defendant then made a stop at a restaurant, consumed additional alcohol, and continued to drive at a speed in excess of 75 mph before losing control of the vehicle and injuring plaintiff. (Id.)

Taylor, Dawes, and Peterson were decided prior to 1987, at which time the Legislature added the requirement to Civil Code Section 3294 that conduct be “despicable” in order to support the imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. Plaintiff does not cite, and the Court cannot find, any subsequent decision holding that drinking and driving, without exacerbating circumstances that make injury probable, gives rise to a claim for punitive damages.

In light of the above, the Court finds that the Complaint fails to allege sufficient facts warranting the award of punitive damages. As discussed in Taylor, Dawes, and Taylor, specific factual circumstances in addition to the intoxication must be pleaded which show that the risk of injury was probable. The Complaint here alleges in conclusory fashion only that Defendant consumed alcohol to the point of intoxication, knew of his intoxication, and struck Plaintiff while driving intoxicated. (See Compl., ¶¶ 7-9.) These factual allegations are simply insufficient to rise to the level described by Taylor, Dawes, or Peterson. As such, the facts plead in the Complaint do not warrant the imposition of punitive damages.

CONCLUSION

The motion is GRANTED with 20 days’ leave to amend.

The Court STRIKES paragraph 8 from page 2, paragraph 18 from page 4, and paragraph 19 from page 5 of the Complaint.

The Court further STRIKES the language from the prayer of page 5 of the Complaint for “punitive and exemplary damages, according to proof.”

Defendant is ordered to give notice.