Case Number: BC573613 Hearing Date: January 17, 2018 Dept: 93

MOVING PARTY: Plaintiffs Harotion Tanchian and Shant Tanchian

RESPONDING PARTY: Defendants Zachary Eginton and Joseph Eginton

Motion for Leave to File First Amended Complaint

The court considered the moving, opposition, and reply papers.

BACKGROUND

On February 26, 2015, plaintiffs Harotion Tanchian, Shant Tanchian, and Anita Tanchian filed a complaint against defendants Zachary Eginton and Joseph Eginton for motor vehicle negligence based on an incident that occurred on February 26, 2013.

On December 5, 2017, plaintiffs filed a substitution of attorney.

On December 20, 2017, plaintiffs filed a request for dismissal as to Anita Tanchian.

LEGAL STANDARD

CCP § 473(a)(1) provides, in relevant part: “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, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490.

Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488.

DISCUSSION

Plaintiffs Harotion Tanchian and Shant Tanchian seek leave to amend their complaint to delete “Anita Tanchian,” change “4” to “6” at para. 2, and add a claim for punitive damages.

Plaintiffs contend that their new counsel took the deposition of defendant Eginton, who stated that at the time of the accident, his blood alcohol content was at .20, and that he had consumed close to 36 oz. of mixed drinks on an empty stomach in less than two hours.

Plaintiffs contend that defendant Eginton was driving a large 2002 Toyota pick-up truck on the streets of Glendale, and that in the evening of February 26, 2013, defendant began to consume alcoholic beverages despite knowing that he had not had any food that day, that he did not have any food in his apartment to eat, and that he would have to drive to a location to get dinner. At about 6:00 or 6:30 p.m., defendant poured himself an alcoholic beverage mixed with Dr. Pepper and over two oz. of vodka, which he consumed in its entirety over the next half hour. At about 6:30 p.m. or 7:00 p.m., he poured himself another alcoholic beverage, with Dr. Pepper and vodka. At about 8:00 p.m., he poured himself a third alcoholic beverage, with Dr. Pepper and vodka. At about 8:20 p.m., he decided to get in his truck and drive to a location to get dinner. In less than two minutes after leaving his apartment in an inebriated condition, defendant crashed his truck into the rear of plaintiffs’ vehicle, which was slowing, with its brake lights and turn signal on, to pull into the driveway of their home. The results of the breathalyzer confirmed that defendant’s blood alcohol content was at 0.20. As a result, defendant was arrested for driving under the influence.

In opposition, defendants argue that the proposed FAC fails to state facts sufficient to support a claim for punitive damages because the allegations do not rise to the level of malice, fraud, or oppression. Defendants do not oppose the amendments correcting dates.

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.”

“’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.” 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).

Taylor v. Superior Court (1979) 24 Cal. 3d 890, is instructive with respect to this set of facts because plaintiffs are seeking to amend that defendant 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.”

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. The proposed allegations are insufficient as to aggravating circumstances.

Based upon the discussion set forth above, the court finds that the proposed allegations are insufficient to support a claim for punitive damages. Thus, the motion is DENIED as to adding a claim for punitive damages.

The motion is GRANTED as to the other proposed amendments.

The court orders that plaintiffs file the proposed First Amended Complaint within five days.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: January 17, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court