2014-00172093-CU-PA

Tara Morgan vs. Carol Lynn Froelick

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Black, Travis G.

Plaintiffs Tara Morgan and Richard Kamahana’s Motion to Amend Complaint to add a

claim for punitive damages against defendant Kenneth George Eaton is granted as to
the punitive damages but denied without prejudice as to the request for attorneys fees.

This case involves a motor vehicle versus motorcycle collision that occurred on April 23, 2013, in which plaintiffs allege that they were stopped at a signal

after exiting Highway 80 in Sacramento County. After the signal light turned green. plaintiff Morgan proceeded onto Watt Avenue when she was hit by defendant Eaton who was riding a motorcycle when he ran a red light.

Plaintiff seeks to amend the complaint, relying on CCP 425.13. However, that code section applies only to medical malpractice cases and requires an evidentiary showing. The Court therefore construes the motion as one to amend pursuant to CCP 473. In any event, a trial court is “free to consider the motion regardless of its label.” ( Passavanti v. Williams, (1990), 225 Cal. App. 3d 1602, 1609; see also Eddy v. Sharp (1988) 199 Cal. App. 3d 858, 863, & fn. 3, citing Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970.) Indeed, “The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.” (

City & County of S. F. v. Muller (1960) 177 Cal. App. 2d 600, 603.)

The California Code of Civil Procedure vests the Court with broad discretion to allow amendment of pleadings when the interests of justice so merit. (Code Civ. Proc, § 473, subd. (a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party … and may upon like terms allow an answer to made after the time limited by this code.”].) “In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” Monge v. Superior Court (1986)176 Cal. App. 3d 503,510.

California courts require that specific facts be pleaded in support of punitive damage allegations; mere conclusions are not enough. (Hilliard v. A.M. Robbins (1983) 148 Cal.App.3d 374, 391; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Broad allegations that a defendant acted maliciously and willfully are not enough; specific facts must be alleged. (Austin v. Regents of University of California (1979) 89 Cal.App.3d 354 disapproved on other grounds by Ochoa v. Superior Court (1985) 39 Cal.3d 159; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

At the time of the filing of the Complaint, plaintiffs were unaware of the defendant’s intoxication and Eaton stated in discovery responses that he had not taken any drugs or alcohol before the accident. However, Plaintiffs subpoenaed defendant Eaton’s emergency room lab records to ascertain whether he had alcohol or drugs in his system at the time of the collision. Plaintiff received defendant’s medical records which revealed that he was positive for opiates (morphine, heroin, oxycontin, codeine, vicodin, dilaudid) based on his urine tox screen. Anything over 300 ng/mL registers. All this aside, his blood alcohol level was .175 which is more than double the legal limit. (Exhibit 5)

Section 3294 defines malice as “conduct which is intended by the defendant to cause injury to the plaintiff or conduct which is carried on by the defendant with a conscious disregard of the rights or safety of others.” Therefore the imposition of punitive damages does not require an intent to do harm under the “conscious disregard” standard but rather a defendant who commits negligence may be subject to punitive liability if he knew the probable harmful consequences of his conduct. The proposed FAC alleges that Defendant Eaton knowingly operated his motorcycle while under the influence of alcohol and opiates and recklessly and carelessly in doing so, caused injury to plaintiffs. He is also alleged to have known that he would be driving his motorcycle at the time he consumed alcohol to reach over double the legal limit and when he took the drugs. This alleged conduct is sufficiently detailed and specific to allow plaintiff at the pleading stage to allege a claim for punitive damages against defendant Eaton.

The California Supreme Court first declared that drunk driving warranted punitive damages in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894. The plaintiff in Taylor alleged that the defendant drove while intoxicated, struck the plaintiffs car head-on, and severely injured him. The court held that the plaintiffs allegations stated a valid

claim for punitive damages. The court defined a “conscious disregard” of the safety of others as an act perpetrated despite its known dangerous consequences. It stated 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,” exhibits a conscious disregard of the safety of others. Because a “conscious disregard” constitutes malice, the court concluded that the plaintiffs exemplary damages claim was valid.

Cases decided subsequent to Taylor have also held that drunken driving constitutes a conscious disregard of the safety of others. In Dawes v. Superior Court, 111 Cal.App.3d 82 the plaintiff alleged that the defendant drove while intoxicated, zigzagged in and out of traffic at excessive speeds in a crowded recreation area, ran a stop sign, and struck the plaintiff on a sidewalk. Similarly, the plaintiff in Peterson v. Superior Court 31 Cal.3d 147, alleged that the defendant, after drinking alcohol, drove at speeds in excess of 100 miles per hour, knew that probable serious injury would result, lost control of the car, and crashed, severely injuring his passenger the plaintiff. In both cases, the courts held that the allegations stated facts that satisfied the conscious disregard standard.

In 1980, the Legislature amended section 3294 by adding the definition of malice stated in Taylor, supra 24 Cal.3d 890; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713) That definition was amended in 1987. As amended, malice, based upon a conscious disregard of the plaintiffs rights, requires proof that the defendant’s conduct is “despicable” and “willful.” (Stats. 1987, ch. 1498, § 5.) The statute’s reference to “despicable conduct represents “a new substantive limitation on punitive damage awards.” (College Hospital, Inc. v. Superior
Court, supra 8 Cal.4th at p. 725, 34 Cal.Rptr.2d 898, 882 P.2d 894.)

Defendant contends that the facts in support of punitive damages are insufficiently specific. The Court disagrees. Plaintiffs allege that Eaton voluntarily consumed alcohol and took drugs to the point of intoxication indicated in the lab report (over double the legal limit for alcohol), knowing that he would be operating a motor vehicle at the time of the consumption. This is sufficient under Taylor to allege a claim for punitive damages based on conscious disregard. There is no requirement that defendant have a prior conviction for drunk driving.

The motion is denied as to the language in the negligence cause of action and the exemplary damages attachment seeking attorneys fees pursuant to CCP 1021.4. The notice of motion addressed only punitive damages, not attorneys fees. Therefore, the proposed amended complaint may be filed only on condition that the last sentence of the negligence cause of action and the last sentence of the exemplary damages attachment be removed from the pleading.

Plaintiffs shall file and serve their proposed First Amended Complaint on or before March 18, 2019. Response to be filed and served within 30 days of service of the FAC, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.