2018-00239247-CU-PA

Giovanni Monterrosa vs. Allan Patrick Lummel

Nature of Proceeding: Motion to Strike

Filed By: Phan, Terence

This case was continued from November 7, 2018, to today’s date to permit the moving party to meet and confer in person or by telephone with opposing counsel as required by CCP § 435.5, and submit a declaration regarding the results of the meet and confer. Defendant’s counsel’s declaration indicates he attempted to meet and confer with Plaintiff’s counsel via e-mail only. Defendant’s counsel sent a single e-mail to Plaintiff’s counsel requesting Plaintiff to stipulate to removing the claim for punitive damages. Plaintiff’s counsel promptly responded declining the request “for the reasons set forth in [the] opposition to [Defendant’s] Motion to Strike.” The Court is unclear why Defendant’s counsel did not comply with the Court’s order and CCP § 435.5, which specifically requires the meet and confer to occur in person or by telephone. Indeed, in its order the Court specifically underlined those terms to bring them to Defendant’s attention. Nonetheless, in order to avoid further delay that may unfairly affect Plaintiff, the Court issues the following ruling on the merits.

This personal injury action arises from a motor-vehicle collision that occurred on October 3, 2017, between plaintiff Giovanni Monterrosa and Defendant. Defendant allegedly ran a red light and collided with Plaintiff’s vehicle. Defendant allegedly told the investigating CHP officer that he had a history of losing consciousness and admitted that he caused the accident due to having lost consciousness. Plaintiff filed a complaint for personal injuries on August 21, 2018.

Defendant now moves to strike Plaintiff’s claims for punitive damages on the grounds that the complaint is devoid of any factual allegations that would support a finding of malice, fraud, or oppression and contains only legal conclusions. Defendant contends Plaintiff has pled only the conclusion that defendant maliciously drove a vehicle knowing he would lose consciousness, but there are no facts pled that would tend to show malice, fraud, or oppression.

Plaintiff’s allegations regarding punitive damages are contained in paragraph 6, which provides:

“Plaintiff is further informed and believes and thereon alleges that this accident was the result of Defendant ALLAN LUMMEL’s, willful and knowing disregard of the rights and safety of others. After the accident, Defendant ALLAN LUMMEL, told the investigating CHP officer, Adam Gonzalez, that Defendant had a history of history of losing consciousness and claimed that he caused the subject accident as a result of having lost consciousness. (These admissions by ALLAN LUMMEL are memorialized in CHP Report No.: 17-3800) Therefore, Defendant, ALLAN LUMMEL, knew and had known that he had a history of losing consciousness and that driving a motor vehicle with such a condition posed a great risk of injury to the motoring public. Notwithstanding this knowledge, Defendant ALLAN LUMMEL, intentionally, maliciously, and/or without due care for the likelihood of injury, operated a motor vehicle while deliberately failing to avoid these consequences, resulting in the October 3, 2017, motor vehicle accident which caused injuries and damages to Plaintiff, GIOVANNI MONTERROSA. Defendant’s conduct was therefore “despicable” and done with willful and knowing disregard for the rights and safety of others. As a result Plaintiff is entitled to punitive and exemplary damages in a sum according to

proof.”

A court tests the adequacy of a punitive damages allegation by way of a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) Under Code of Civil Procedure section 435, a defendant, within the time to respond to a complaint, may file a motion to strike the whole or any part of the pleading. (Code Civ. Proc. § 435, subd. (b)(1).) Under section 436, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” as well as “all or part of any pleading not drawn or filed in conformity with the laws of this state.” (Code Civ. Proc, § 436, subds.

(a) and (b).)

In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pleaded by a plaintiff. (Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166; Blegen v. Superior Court (1981) 125 Cal. App. 3d 959, 962-963.) In assessing such a motion, the Court notes that the allegations of a pleading subject to a motion to strike is read as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal. App. 4th 1504, 1519; Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 91; see Cal. Judges Benchbook, Civil Proceedings Before Trial (1995) Attacks on Pleadings, § 12.94, p. 611.) In ruling on a motion to strike, courts do not read allegations in isolation. (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

In order to plead an entitlement to punitive damages a plaintiff must allege the defendant is guilty of “oppression, fraud, or malice.” (Civil Code § 3294(a).) “Malice” under Civil Code § 3294(c)(1) means conduct intended to injure the plaintiff or despicable conduct by the defendant with a willful and conscious disregard of others. Malice “based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) “‘[D]espicable’ connotes conduct that is ‘…so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’” (Id. [citations omitted].) Despicable conduct includes “that which is in blatant violation of law or policy.” (American Airlines, Inc. v. Sheppard, Mullin, Richter, & Hampton (2002) 96 Cal.App.4th 1017, 1050.) Indeed, “[e] ven ‘nonintentional torts’ may form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of other. [citation omitted] ‘Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable harm will result.’ [citation omitted].” (Skf Farms v. Superior Court (1984) 153 Cal.App.3d 902, 907.)

“A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. (Rest. Torts, sec. 500 et seq.; Prosser, Torts, pp. 260, 261.) Such a tort has been labeled “willful negligence,” “wanton and willful negligence,” “wanton and willful misconduct,” and even “gross negligence.” It is most accurately designated as wanton and reckless misconduct. Wanton and reckless misconduct is more closely akin to willful misconduct than to negligence, and it has most of the legal consequences of willful misconduct. Thus, it may, in the appropriate circumstances, justify an award of punitive damages…” (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869-870.) A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. (See Taylor v. Superior

Court (1979) 24 Cal.3d 890, 895.)

Here, Plaintiff has alleged Defendant knew he had a history of losing consciousness, yet chose to operate a motor vehicle nonetheless knowing the great risk it would pose to others. The Court finds the foregoing alleges a conscious disregard for the safety of others sufficient to support a claim for punitive damages. Indeed, it bears repeating that “[e]ven ‘nonintentional torts’ may form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of other. [citation omitted] ‘Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable harm will result.’ [citation omitted].” (Skf Farms v. Superior Court (1984) 153 Cal.App.3d 902, 907.)

In Taylor v. Superior Court (1979) 24 Cal.3d 890, the Supreme Court addressed intoxicated drivers, stating “One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.” Id. at p. 897. Yet, the Supreme Court noted with approval G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, wherein Justice Friedman wrote “The phrase conscious disregard is sometimes used to describe the highly culpable state of mind which justifies an exemplary award . . . . [para. ] We suggest conscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged.” (Italics in original, p. 32) Taylor concurred with Searle that “a conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.” (Taylor, supra, at p. 896.) The Taylor court further 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 wilfully and deliberately failed to avoid those consequences.” Id. at p. 895-896. Alcohol and intoxication is not a sine qua non.

For the foregoing reasons, the motion to strike is DENIED.

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