Case Name: Shiva Mastani Adli v. John Peter O’Connor

Case No.: 19-CV-349891

Currently before the Court is the motion by defendant John Peter O’Connor (“Defendant”) to strike portions of the first amended complaint (“FAC”) of plaintiff Shiva Mastani Adli (“Plaintiff”).

Factual and Procedural Background

This is a personal injury action. On April 23, 2018, at approximately 5:00 p.m., Defendant arrived at his ex-wife’s house to pick up their son. According to his ex-wife, Defendant “looked incapable of driving and caring for their son (extremely pale, eyes dialted [sic], body shaking and slurred speech).” (FAC, ¶ IT-1.) Defendant had previously told his ex-wife that, while driving, “he suffered from double vision and short-term memory loss,” “everything looked like a video game,” and “he could not keep his hands steady.” (Ibid.) When Defendant’s ex-wife told Defendant that he was in no condition to drive, “he became very defensive, claimed he was fine, and took the baby from [his ex-wife] and left.” (Ibid.)

Shortly thereafter, Defendant negligently operated his car and collided with Plaintiff on Union Avenue, causing Plaintiff injuries. (FAC, ¶¶ MV-1, MV-2, GN-1, & IT-1.) Defendant then called his ex-wife and informed her that he had been involved in a motor vehicle accident. (Id. at ¶ IT-1.) When his ex-wife arrived on the scene, she saw Defendant hiding medications—Valium and Oxycodone—in their son’s pants pocket. (Ibid.) Defendant asked his ex-wife to take their son and put him in her car. (Ibid.) The police officer at the scene asked Defendant’s ex-wife why Defendant “was shaking so much” and Plaintiff saw Defendant “having severe tremors.” (Ibid.)

Later that evening, Defendant told his ex-wife that “he was not in the right state to have driven or taken care of the baby.” (FAC, ¶ IT-1.)

Plaintiff alleges that Defendant “drove in reckless and conscious disregard of probable dangerous consequences of his actions (in continuing to drive) both for his own son and for others on the road.” (FAC, ¶ IT-1.) Plaintiff further alleges that “[t]he fact that Defendant hid the medications which were in his vehicle reveals a consciousness of guilt in regard to his condition of being under the influence.” (Ibid.)

Based on the foregoing allegations, Plaintiff filed the operative FAC against Defendant, alleging causes of action for: (1) motor vehicle negligence; (2) general negligence; and (3) intentional tort.

On October 11, 2019, Defendant filed the instant motion to strike. Plaintiff filed papers in opposition to the motion on December 2, 2019. On December 10, 2019, Defendant filed a reply.

Discussion

Defendant moves to strike Plaintiff’s third cause of action for intentional tort and request for punitive damages.

I. Requests for Judicial Notice

A. Defendant’s Request

Defendant asks the Court to take judicial notice of “all documents contained in the court’s files in this action” and, specifically, the FAC. (D’s RJN, pp. 1:19-2:2.)

As an initial matter, Defendant’s request for judicial notice of all documents contained in the court file is improper. The request violates California Rules of Court, rule 3.1113, subdivision (l) which states, “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested ….” Here, the general reference to the entire court file simply does not constitute a specific item. Thus, the Court declines to take judicial notice of all documents filed in this case.

Furthermore, the Court declines to take judicial notice of the FAC. A court may generally take judicial notice of a pleading because it is a court record. (Evid. Code, § 452, subd. (d).) With that said, it is unnecessary to take judicial notice of the FAC because it is the pleading under review and, as such, must necessarily be considered by the Court. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1 [denying a request for judicial notice of the operative pleading as unnecessary].)

Accordingly, Defendant’s request for judicial notice is DENIED.

B. Plaintiff’s Request

Plaintiff asks the Court to take judicial notice of the declaration of Defendant’s ex-wife, which was previously filed on September 30, 2019. (P’s RJN, p. 1:21-25.)

Evidence Code section 452, subdivision (d) states that courts may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455; see Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 [a court may not take judicial notice of documents such as sworn declarations unless those documents contain statements of the plaintiff or his agent that are inconsistent with the allegations in the pleading].)

Here, the declaration of Defendant’s ex-wife is a court record. But Plaintiff urges the Court to take judicial notice of the truth of the statements contained in the declaration, not merely the existence of the declaration. This the Court cannot do.

Accordingly, Plaintiff’s request for judicial notice is DENIED.

II. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

III. Analysis

Defendant initially argues that the third cause of action and request for punitive damages should be stricken from the FAC because they are based on irrelevant, false, or improper matters. (Mem. Ps. & As., pp. 2:23-3:22 & 5:14-18.) Specifically, Defendant contends that allegations regarding him being under the influence of medication are irrelevant because “the accident … is the alleged injury producing event, not the fact that [he] was or was not under the influence.” (Id. at p. 3:25-27.) Defendant further asserts that any such allegations are false because “there is no DMV restriction for [him] for any prescriptive medication/s [sic] and [he] was not cited … for being impaired or ‘being under the influence of medications’ for the accident or for any ‘body shaking[ ]’ or ‘slurred speech.’ ” (Id. at pp. 3:27-4:3.) Defendant also urges that allegations regarding him being under the influence of medication are conclusory and prejudicial. (Id. at p. 4:7-23.) Lastly, Defendant contends that the allegations are improper because they are based on statements made by his ex-wife, who is not credible. (Id. at p. 4:3-6.)

Defendant’s initial argument is not well-taken. First, the allegations regarding Defendant’s use of prescription medications and actions under the influence of such medications are not irrelevant. Those allegations go to whether Defendant’s conduct fell below the applicable standard of care and constituted despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Thus, the allegations are relevant to Plaintiff’s negligence claim and request for punitive damages. (See Code Civ. Proc., § 431.10, subd. (a) [“A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.”].)

Second, there is nothing in the record demonstrating that the subject allegations are false. Defendant asserts that the allegations are false because he was not cited for being under the influence and the Department of Motor Vehicles did not restrict his use of prescription medications. Those facts cannot be considered because they do not appear on the face of the FAC or from matters of which the Court may take judicial notice. (Code Civ. Proc., § 437, subd. (a) [the grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice].) Moreover, the purported fact that Defendant was not cited for being under the influence and the Department of Motor Vehicles did not restrict Defendant’s use of prescription medications does not establish that Defendant was not, in fact, under the influence of prescription medications. Thus, nothing before the Court establishes that the allegations are false.

Third, the subject allegations are not conclusory, but based on specific facts (e.g., Defendant slurred his speech, was extremely pale and shaking, and was seen hiding the prescription medications after the accident).

Fourth, Defendant does not present reasoned argument or legal authority, and the Court is aware of none, providing that prejudice is a basis on which an allegation may be stricken. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [same].)

Fifth, and finally, there is nothing before the Court establishing that Defendant’s ex-wife is not credible. Moreover, the fact that Defendant’s ex-wife may not be a credible witness is not a basis for striking allegations of the FAC.

Next, Defendant argues that general allegations of driving while intoxicated cannot support a request for punitive damages, and Plaintiff fails to allege aggravating factors, such as prior driving-under-the-influence offenses.

In Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 899 (Taylor), the California Supreme Court held that “one who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’ [Citation.]” (See Busboom v. Super. Ct. (1980) 113 Cal.App.3d 550, 555 [Taylor overruled that aspect of Gombos v. Ashe (1958) 158 Cal.App.2d 517 that held driving a vehicle while intoxicated is not itself a basis of a finding of conscious disregard of safety].)

Civil Code section 3294, which governs punitive damages, reflects the California Supreme Court’s holding in Taylor as it does not require intentional conduct for an award of punitive damages. Rather, such an award may be based on a showing that the defendant engaged in despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1) [setting forth the definition of malice]; see Taylor, supra, 24 Cal.3d at pp. 895-96 [to plead malice, a plaintiff must allege “the defendant was aware of the probable dangerous consequences of his [or her] conduct and [ ] willfully and deliberately failed to avoid those consequences.”].)

Additionally, the California Supreme Court in Taylor expressly stated that a plaintiff need not allege any aggravating circumstances in order to adequately plead malice. (Taylor, supra, 24 Cal.3d at p. 896 [“while a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases”].)

Here, Defendant’s argument is not well-taken. Plaintiff is not required to allege aggravating factors, such as prior driving-under-the-influence offenses, to adequately plead a request for punitive damages. Furthermore, Plaintiff’s allegations are not conclusory. Plaintiff alleges that Defendant was previously aware that while driving, “he suffered from double vision and short-term memory loss,” “everything looked like a video game,” and “he could not keep his hands steady.” (FAC, ¶ IT-1.) Prior to the accident, he was under the influence of prescription medications, he was shaking and extremely pale, his eyes were dilated, and his speech was slurred. (Ibid.) He was also told by his ex-wife that he was in no condition to drive. (Ibid.) Nonetheless, Defendant voluntarily chose to drive while under the influence and negligently operated his vehicle, colliding with Plaintiff. (Ibid.) Defendant then hid prescription medications following the accident. (Ibid.) These allegations are sufficient to support a claim for punitive damages.

IV. Conclusion

For these reasons, Defendant’s motion to strike is DENIED.