2018-00232831-CU-PA

Dalean Patrica Colindres vs. Paulette Dlaine Abegglen

Nature of Proceeding: Motion to Strike

Filed By: Finch, Steven H.

Defendant Paulette Abegglen’s motion to strike punitive damages and request for attorney’s fees from Plaintiffs Dalean and Jennifer Colindres is ruled upon as follows.

This motion was continued from September 18, 2018 to allow Defendant to comply with CCP § 435.5(a).

Defendant’s request for judicial notice is granted.

In this personal injury action arising out of a motor vehicle accident, Defendant moves to strike punitive damages allegations. Plaintiffs allege that at the time of the accident, Defendant was operating her vehicle while under the influence of alcohol and with a blood alcohol level exceeding the legal limit. (Comp. ¶ 13.) They allege that Defendant was “well aware that driving while intoxicated posed a risk of serious injury or death to other persons using the roadways. Despite said knowledge and in conscious disregard of the rights and safety of others, including these Plaintiffs, Defendant[]…consumed alcoholic beverages, to the point of intoxication, with full knowledge that they intended to operate a motor vehicle.” (Id.) They also allege that Defendant committed a felony offense “consisting of driving while under the influence of alcohol and/or controlled substances, resulting in great bodily injury” and therefore seek attorneys’ fees pursuant to CCP § 1021.4. (Id. ¶ 14.)

Punitive Damages

Defendant argues that the punitive damages are conclusory, lack specific facts and at most show reckless conduct.

In order to plead an entitlement to punitive damages a plaintiff must allege that 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.) Nonetheless, the cases have uniformly recognized that proof of negligence,

even gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (E.g., G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 31; see Taylor v. Superior Court, (1979) 24 Cal.3d 890, 895, 900 [conc. opn. of Bird, C.J.], 907 [dis. opn. of Clark, J.]; Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286.)

Punitive damages are available in personal injury actions against one who drives while intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890.) “There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [citation omitted] One who willfully consumes alcoholic beverage to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities 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 has a history of drunk driving incidents.” (Id. at 897-898.) A claim for punitive damages can be premised on despicable conduct involving consumption of alcoholic beverages. (Id at p. 899.) Such alleged conduct demonstrates, in the words of Dean Prosser, “such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” Id.; see, also Burg v. Municipal Court, (1983) 35 Cal. 3d 257,

262. Here, Defendant argues that the allegations are conclusory and fail to allege facts similar to those in Taylor where the defendant was an alcoholic, “well aware of the serious nature of his alcoholism…[and his]…tendency, habit, history, practice, proclivity, or inclination to drive a motor vehicle, while under the influence of alcohol” and had been involved in a previous accident while he was driving under the influence and had been arrested for drunk driving. (Id. at 893.) However, Taylor did not lay down any specific guidelines for what exactly must be alleged in connection with such a claim for punitive damages and indeed as stated above, even made clear that the “effect may be lethal whether or not the driver has a history of drunk driving incidents.” (Id. at 898.) In fact Taylor made clear that the essence of the claim was that “Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. This is the essential gravamen of the complaint, and 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.” (Id. at 896-897 [emphasis added].)

While Plaintiffs’ opposition refers to several matters not alleged in the complaint (e.g., that Defendant admitted to the investigating officer that she was confused what road she was on, that she had a previous DUI, her BAC was above .15%, etc.), and which cannot be considered on this motion, the Court concludes that the allegations here are sufficient. Plaintiffs have not simply alleged that Defendant was intoxicated while driving. Rather they alleged that Defendant voluntarily consumed alcoholic beverages to the point of intoxication with knowledge that she would operate a motor vehicle. Plaintiffs allege that Defendant was aware that driving while intoxicated posed a serious risk of injury or death to others and despite that knowledge and in conscious disregard of the rights and safety of others, drove while intoxicated. Case law has held that allegations that a defendant “voluntarily consumed alcohol, knowing he would then operate a motor vehicle, and drove while drunk, knowing the safety hazard he created and aware of the probable consequences of his conduct which he willfully and deliberately failed to avoid” are sufficient under Taylor, supra, 24 Cal.3d 890. ( Busboom v. Superior Court (1980) 113 Cal.App.3d 550, 552-553.) Plaintiff’s allegations are sufficient and no further level of detail is required at the pleading stage.

The above analysis is not affected by the fact that Civil Code § 3294 was amended since Taylor and Taylor has not been overruled or superseded as suggested by Defendant in reply. As seen from case law, the California Supreme Court in College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, cited Taylor favorably when discussing the amendments to Civil Code § 3294. It stated that by adding the word ‘willful’ to the ‘conscious-disregard’ prong of malice, the Legislature has arguably conformed the literal words of the statute to existing case law formulations.” (Id. at 725 [citing Taylor].) It did note that the amendment adding “despicable” represented a new substantive limitation on punitive damages but in no way indicated that it was overruling Taylor or that somehow drunk driving could no longer support a request for punitive damages. Further, Lacker v. North (2006) 135 Cal.App.4th 1188 is an appellate court decision which could not overturn Taylor, a Supreme Court decision. In any event, Lacker involved a snowboarder and there were no allegations of intoxication and Lacker even cited Taylor favorably to demonstrate that the allegations there were far worse than the snowboarding allegations. Lacker simply pointed out that § 3294 did not contain the “despicable” language at the time Taylor was decided. (Lacker, supra, 135 Cal.App.4th at 1212.) The Court has no trouble concluding that allegations that one became voluntarily intoxicated knowing that he or she would be operating a motor vehicle and aware of the risks constitutes despicable conduct.

The motion to strike punitive damages is denied.

Attorneys’ Fees

In addition, Defendant moves to strike Plaintiffs’ request for attorney’s fees pursuant to CCP § 1021.4. That section provides that “[i]n an action for damages against a defendant based upon that defendant’s commission of a felony offense for which the defendant has been convicted, the court may, upon motion, award reasonable attorney’s fees to a prevailing plaintiff against the defendant who has been convicted of the felony.” (CCP § 1021.4.) Here, Plaintiff has only alleged that Defendant committed a felony offense but there is no allegation that Defendant has been convicted of a felony. As a result, the motion to strike the request for attorney’s fees pursuant to CCP § 1021.4 is granted. Leave to amend is granted as this is the first challenge to the complaint.

Where leave was given Plaintiffs may file and serve an amended complaint no later than October 29, 2018. Defendant shall file and serve her response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.

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