Case Name: Suraj Adhikari, et al. v. Jenny Schwartz, et al.
Case No.: 17CV318694

I. Background

This case brought by Suraj Adhikari, Kishor Bhakta Shrestha, and Mona Shrestha (collectively “Plaintiffs”) against Jenny Schwartz (“Jenny”) and Michael Schwartz (“Michael”) (collectively “Defendants”) arises from a vehicular collision.

According to the allegations of the Complaint, on November 7, 2017, Jenny was driving a motor vehicle owned by her and Michael at or near an intersection in Mountain View, California. Jenny was intoxicated and struck Plaintiffs’ vehicle. The collision caused personal injury to Plaintiffs as well as vehicle damage. Jenny fled the scene, but was eventually apprehended by police. She pled guilty to driving under the influence of alcohol.

Plaintiffs assert a single cause of action against Defendants for negligence and seek both compensatory and punitive damages. Defendants currently move to strike the punitive damages allegations.

For the reasons discussed below, the motion is DENIED.

II. Merits of the Motion to Strike

Defendants move to strike the prayer for punitive damages and the exemplary damages attachment to the complaint. Defendants argue that the intoxicated driving alleged here is not sufficiently egregious to support a claim for punitive damages.

On a motion to strike portions of a pleading under Code of Civil Procedure section 435, a court may strike out any irrelevant or improper matter inserted in the pleading. (Code Civ. Proc., § 436, subd. (a).) Irrelevant matter subject to a motion to strike includes a request for punitive damages. (Code of Civ. Proc., § 431.10, subds. (b), (c).)

Civil Code section 3294, subdivision (a) provides that punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud. In order “[t]o support punitive damages, the complaint . . . must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Havenson (1976) 65 Cal.App.3d 306, 316-317, internal citations omitted.) Simply pleading the terms malice, oppression or fraud alone is insufficient to support a claim for punitive damages; in other words, such damages cannot be pleaded generally. (Blengen v. Superior Court (1981) 125 Cal.App.3d 959, 963.)

“‘Malice’ means 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).) Unless there is an allegation of intent to harm, 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.” (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895-96.) “‘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).) For purposes of both malice and oppression, despicable conduct means conduct that is “‘so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “‘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).)

Plaintiffs checked the boxes for malice, oppression and fraud in their form complaint. However, the pleading is entirely devoid of allegations supporting the existence of any fraud. Consistent therewith, Plaintiffs focus only on malice and oppression in their motion. Defendants respond in kind in opposition and do not suggest their punitive damages claim is in fact predicated on fraud.

The leading case dealing with recovery of punitive damages in drunk driving cases is
Taylor v. Superior Court (Stille) (1979) 24 Cal.3d 890 (“Taylor”). In Taylor, the Supreme Court of California considered whether drunk driving could indicate malice sufficient to warrant punitive damages. (Id. at 892.) There, the defendant drove a vehicle while intoxicated and struck another vehicle, causing damage. (Ibid.) The defendant had a history of driving while under the influence of alcohol. (Ibid.) The court stated: “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.” (Id. at 895-896.) The 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, […] ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.’” (Id. at 899–900, internal citation omitted.)

Defendants concede that drunk driving may support a finding of malice if “plaintiffs allege sufficient, specific & unique facts to make a finding of implied malice and despicable conduct,” but deny such facts are present here. (Mtn. to Strike, p. 8:12-13, 8:21-23.) Defendants contend that Taylor is distinguishable because the defendant in that case had a prior history of drunk driving, which was “sufficient to infer the malicious intent necessary to warrant punitive damages[,]” and no similar history is alleged here. (Mtn. to Strike, p. 8:17-18.) This argument is unpersuasive as Taylor expressly states a prior history of drunk driving is not essential to justify punitive damages. (Taylor, supra, 24 Cal.3d at 896.) Thus, the fact no history of prior intoxicated driving is presently alleged does not foreclose a showing of malice here. (See Ibid.)

Defendants reason that if intoxicated driving was always sufficient to warrant punitive damages under Taylor motions to strike like this one would not be brought. Defendants then cite language from Taylor stating that punitive damages based upon malice are appropriate if the intoxicated driving was performed under circumstances that show a “conscious disregard of the probable dangerous consequences.” (Taylor, supra, 24 Cal.3d at 892.) Defendants are correct that not every personal injury case involving intoxicated driving may necessarily warrant a prayer for punitive damages. (See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88 (“Dawes”), citing Taylor, supra, 24 Cal.3d at 896-97.) Beyond the discussion of the standard from Taylor, Defendants’ reasoning is reasoning is circular and inapposite. Defendants ask the Court to consider the fact that because similar motions are commonly filed they must have some degree of merit. This argument is not at all persuasive. Even if this were the case, it would not imply that this particular motion is meritorious.

Defendants cite two cases interpreting Taylor, namely Lackner v. North (2006) 135 Cal.App.4th 1188 (“Lackner”) and Dawes, supra, 111 Cal.App.3d 82, to support their position. Lackner is factually distinguishable in that it involved a collision between a snowboarder and a skier upon a ski slope. (Lackner, supra, 135 Cal.App.4th at 1194-95.) Lackner’s different facts, particularly the lack of alcohol or motor vehicles, make it inapposite for assessing whether driving a vehicle while intoxicated would constitute malice. (See Ibid.)

Turning to Dawes, in that case an intoxicated person wove in and out of traffic at high speed in a crowded beach recreation area. (Dawes, supra, 111 Cal.App.3d at pp. 85-87.) The trial court granted a motion to strike punitive damages allegations, and the plaintiffs sought review. (Id. at 85.) The court of appeal concluded the trial court’s order was erroneous. (Ibid.) The appellate court contrasted the risk created by ordinary drunk driving, which it classified as “foreseeable but not probable” with the type of driving engaged in by the defendant, which made risk to others “probable.” (Id. at 89.) The court reasoned “…we do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on 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.” (Ibid.) Thus, according to Dawes, the precise facts of the driving and the driver’s conduct matter in the determination of whether malice was present. (See Ibid.) The court stated that cases involving drunk driving are subject to the same standard for malice as other cases, and “that a conscious disregard of safety and probable injury to others could constitute ‘malice’ within the meaning of that term as used in Civil Code section 3294.” (Id. at 90-91.) The court found the specific facts alleged showed a conscious disregard for probable injury to others, and the defendant’s driving consequently showed malice. (Id. at 90.)

In sum, Defendants correctly assert based upon Taylor and Dawes that not every collision involving intoxicated driving may support a finding of malice. Malice is properly alleged when there are sufficient supporting facts alleged to show “the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor, supra, 24 Cal.3d at 895-896.) Malice can be alleged expressly or implicitly through specific facts showing dangerous driving, such as driving at high speed near pedestrians. (Dawes, supra, 111 Cal.App.3d at 90 [“… petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred”].) Bearing this in mind, the issue now before the Court is whether Plaintiffs’ allegations show sufficient facts to allege conscious disregard of safety and probable injury to others, and therefore may sustain a prayer for punitive damages.

Here, Plaintiffs allege that Jenny “knowingly consumed alcohol and/or drugs to the point of intoxication at a time when said defendants, and … knew or should have known, that they would thereafter operate a motor vehicle while so intoxicated and then did operate a motor vehicle while so intoxicated and thereby proximately caused the herein… when the vehicle operated by JENNY SCHWARTZ and DOES 1-5, crashed into the rear of the vehicle.” (Complaint, Exemplary Damages Attachment, Ex-2, ¶2.) Plaintiffs then aver that, “[i]n so doing, defendants … acted with conscious disregard for the health and safety of individuals such as the plaintiffs herein who suffered injuries…” (Complaint, Exemplary Damages Attachment, Ex-2, ¶2.)

Although additional facts, such as those present in the cases discussed, are not specifically alleged here, the factual allegations presented in the complaint are sufficient to allege a factual basis for a potential finding of malice upon which punitive damages may be awarded. (See Taylor, supra, 24 Cal.3d at 895–896.)

Plaintiffs also assert the allegations are sufficient because they have alleged Jenny became intoxicated while knowing she would have to operate a vehicle. Plaintiffs cite to Peterson v. Superior Court (1982) 31 Cal.3d 147, 162 (“Peterson”). In Peterson, the defendant drove at a speed in excess of 100 miles per hour while intoxicated, and was warned by the plaintiff, a passenger, to reduce his speed and control his driving. (Id. at 162.) Thereafter the defendant stopped at a restaurant where he consumed more alcohol, and then continued driving at 75 miles per hour before eventually losing control of the vehicle and injuring the plaintiff. (Ibid.) Plaintiffs analogize the present case to Peterson, in that the Peterson court stated the gravamen of the cause of action was intoxicated driving with knowledge of the safety hazard that it created, similar to Taylor. The court recognizes the factual allegations here are not as specific as those in Peterson; nonetheless, the court finds sufficient facts are alleged to overcome defendants’ motion to strike.

Additionally, Plaintiffs argue the choice to flee from the scene, as alleged in the complaint, shows Jenny knew she was too intoxicated to drive. That she fled the scene in conscious disregard of “their duties and obligations to Plaintiffs and others” alleges a minimal factual basis for punitive damages, which the court deems sufficient to deny defendants’ motion.

Turning to the assertion that punitive damages are appropriate based upon Michael Schwartz’s decision to allow Jenny Schwartz to drive a motor vehicle when he knew or should have known she would be intoxicated, this allegation of entrustment of the vehicle to her under such circumstances and with such alleged knowledge is sufficient, at a minimum, to state a claim for punitive damages.

III. Conclusion

The motion to strike punitive damages is DENIED.