Case Number: BC709523 Hearing Date: November 27, 2018 Dept: 3

KIMBERLY NICOLE NOVAK,

Plaintiff(s),

vs.

LAJWANTI CHOUDHURY, ET AL.,

Defendant(s).

CASE NO: BC709523

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE WITHOUT LEAVE TO AMEND

Dept. 3

1:30 p.m.

November 27, 2018

1. Background Facts

Plaintiffs, Kimberly Nicole Novak and Aaron Benjamin Wolf filed this action against Defendant, Lajwanti Choudhury for damages arising out of an automobile accident. Plaintiffs’ original complaint included a prayer for punitive damages, and Defendant moved to strike the prayer and related allegations. Prior to the hearing, Plaintiffs filed their operative First Amended Complaint.

The FAC also includes a prayer for punitive damages, and Defendant moves to strike the prayer and related allegations at this time.

2. Motion to Strike

a. Meet and Confer

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the motion. (CCP §435.5.)

Defendant has fulfilled the meet and confer requirement as to the motion to strike. The parties were unable to resolve the issues presented by way of the motion despite their good faith meet and confer efforts.

b. Request for Judicial Notice

Defendant filed a request for judicial notice of the criminal court records relating to Defendant. The RJN is granted.

c. Law Governing Imposition of Punitive Damages in Context of Driving Under the Influence

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96. The Taylor court concluded that the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences. “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.” Id., at p. 897.

To properly allege punitive damages in a motor vehicle accident action, a plaintiff simply needs to “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. 896. If the essential gravamen of the complaint is that “Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby” then this is sufficient to allege punitive damages. (Id.) 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.

Taylor justified imposing punitive damages upon the “deliberate” drunk driver for many reasons, including the high degree of foreseeability of injury and damage flowing from driving while intoxicated. The court says the essential allegation is that defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. The decision also discusses the grave havoc wrought by intoxicated drivers nationwide and equates the act of deliberately driving while under the influence with a conscious and deliberate disregard of the interests of others which may be described as willful or wanton. Such conduct, the court said, has traditionally been a basis for awarding punitive damages. Herrick v. Superior Court (1987) 188 Cal.App.3d 787, 790.

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] 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 nor the driver had a prior history of drunk driving incidents.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897. “[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.” Id., at p. 897.

Taylor fell short, however, of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The 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. Emphasis added.

Notably, a subsequent decision 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. The risk of injury to others from Mardian’s conduct under the circumstances alleged was probable.” Dawes v. Superior Court (1980) 111 Cal.App.3d 82.

The court went on to note, “In contrast, in the case at bench, as previously noted, petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. Justice Franson aptly noted the distinction in his article on punitive damages in vehicle accident cases: Allegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection crowded with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise. This would be particularly true if the defendant had not been drinking, or, if drinking, he was not under the influence to the point where he was incapable of being aware of the situation confronting him. Under these circumstances, it reasonably might be said that the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others.”

Further complicating the matter, in 1987, after all of the foregoing cases were decided, the legislature amended Civil Code §3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support imposition of punitive damages.

d. Facts Pled

In support of Plaintiffs’ claim for punitive damages, Plaintiffs have pled that Defendant’s blood alcohol level was approximately .24 at the time of the accident, that Defendant failed a field sobriety test, that Defendant was found to be driving under the influence, and that “just prior to the collision,” Defendant was texting. FAC, ¶5. The Court also notes that Defendant establishes, through her request for judicial notice, that she pled “no contest” to the charged filed against her.

e. Analysis

The FAC herein does not allege any additional aggravating factors over and above driving under the influence; to the extent the FAC is relying on the contention that Defendant was texting, it is not clear whether texting contributed to the accident or how long before the accident the texting occurred. The motion to strike is therefore granted. Any opposition to the motion was due on or before 11/09/18. The Court has not received opposition to the motion. In light of the lack of opposition, leave to amend is denied.

f. Conclusion

The motion to strike is granted. Defendant is ordered to file an answer to the FAC, with the subject allegations and prayer for punitive damages deemed stricken, within ten days.

Defendant is ordered to give notice.