Case Number: BC698705 Hearing Date: November 27, 2018 Dept: 4

Motion to Strike Portions of Plaintiff’s First Amended Complaint

The court considered the moving and opposition papers.

Background

On March 19, 2018, plaintiff David Henry Sauceda (“Plaintiff”) filed a complaint against defendants David Chun and Kyung Chun (collectively, “Defendants”) for motor vehicle negligence and intentional infliction of emotional distress based on an incident that occurred on July 28, 2017.

On July 12, 2018, the Court sustained Defendants’ motion to strike portions of complaint with 20 days leave to amend. On August 10, 2018, Plaintiff filed a First Amended Complaint, asserting the aforesaid causes of action against Defendants.

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any 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. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice…” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found:

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a

conscious and deliberate disregard of the interests of others that his conduct may

be called willful or wanton.”

Indeed, “malice” is defined in Civil Code § 3294 to mean “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.” Civil Code § 3294(c)(1). As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

A claim for punitive damages may not be based on conclusory allegations of oppression, fraud or malice, but instead must be based on factual allegations which support such a conclusion. See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive

damages because “[t]he sole basis for seeking punitive damages are…conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”).

Discussion

Defendants David Chun (“David”) and Kyung Chun (“Kyung”) request that the court strike para. 17 and prayer at para. 4 for punitive damages.

Plaintiff alleges that on or about July 28, 2017, his vehicle was rear ended by David, who was traveling on SR2 at Glendale Boulevard. First Amended Complaint (“FAC”), ¶¶ 5-6. David was driving under the influence of alcohol and was charging with violating Vehicle Code § 23152(a). Id., ¶ 7. David admitted to the police that he had had at least three beers before operating his vehicle. Id., ¶ 27. Immediately after the collision at the accident scene, David had an odor of alcohol, watery and bloodshot eyes, and slow and slurred speech. Id., ¶ 30. David failed the Field Sobriety Test and had a blood alcohol level and content in excess of .08%. Id. After the collision, David fled the scene of the accident and left Plaintiff stranded on a major freeway in an unknown physical state as a result of injuries sustained by Plaintiff in the accident. Id., ¶ 9. As to Kyung, Plaintiff alleges that he was the owner of the vehicle driven by David and that he entrusted the vehicle to David. Id., ¶¶ 22-23.

Defendants argue that plaintiffs’ allegations do not support a claim for punitive damages.

In opposition, Plaintiff argues that the allegations are sufficient.

At the outset, the Court declines to consider a copy of the police report attached as Exhibit A to Plaintiff’s counsel’s declaration. The police report was not attached to the First Amended Complaint.

Taylor, supra, 24 Cal. 3d 890, is instructive with respect to this set of facts because Plaintiff is alleging that David was intoxicated. The Court in Taylor fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated. 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. at 892.

In the subsequent decision of Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, the Court of Appeal 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 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. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” See also Busbom v. Superior Court (1980) 113 Cal.App.3d 550 (plaintiff alleges that defendant drove his pickup southbound in the northbound lane of the highway); Peterson v. Superior Court (1982) 31 Cal.3d 147, 162 (defendant was alleged to be driving at speeds of greater than 100 miles per hour after consuming alcoholic beverages); Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 936 (defendant ran red light after ingesting drugs).

Significantly, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code § 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. There has been no subsequent decision holding that drinking and driving, without aggravating circumstances that make injury probable, gives rise to a claim for punitive damages. Plaintiff fails to factually allege any aggravating circumstances. Thus, the allegations are insufficient to show conscious disregard for the safety of others. Further, the allegations are insufficient to support a claim for punitive damages against owner defendant.

Based upon the discussion set forth above, the court finds that the allegations are insufficient to support a claim for punitive damages.

The motion is therefore GRANTED.

The Court STRIKES para. 17 and prayer at para. 4 for “punitive damages.”

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: November 27, 2018

_____________________________

Christopher Lui

Judge of the Superior Court