Case Number: BC556504 Hearing Date: February 09, 2015 Dept: 93
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
DEPARTMENT 93

MOVSES GHAZARYAN,

Plaintiff(s),

v.

PHILLIP DONGHYUN KIM, et al.,

Defendant(s).

Case No.: BC556504

Hearing Date: February 9, 2015

[TENTATIVE] ORDER RE:
MOTION OF DEFENDANT, PHILLIP DONGHYUN KIM, TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

The Motion of defendant, PHILLIP DONGHYUN KIM, to STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT is GRANTED with 20 days’ leave to amend.

BACKGROUND

This case arises out of a motor vehicle accident that occurred on September 8, 2012 (“Subject Incident”). On September 4, 2014, Movses Ghazaryan (“Plaintiff”) filed a complaint (“Complaint”) alleging causes of action for Motor Vehicle and General Negligence against Phillip Donghyun Kim (“Defendant”). Plaintiff filed a first amended complaint (“FAC”) on November 12, 2014.

This motion was filed and served by mail on December 3, 2014. An opposition was served on January 26, 2015, and filed on January 27, 2015. A reply was filed and served on February 2, 2015.

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.

DISCUSSION

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” Something more than the commission of a tort is required for punitive damages. Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894. “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.” Id.

In Taylor, supra, 24 Cal.3d at p. 892, the California Supreme Court held that driving while intoxicated can, under certain circumstances, support an award of punitive damages because it evidences malice. Specifically, in Taylor, the complaint alleged that the defendant was an alcoholic with a history of driving while under the influence of alcohol and he was aware of the dangerousness of his driving while intoxicated. The Court also found, in holding the allegations of the complaint sufficient to support a punitive damages claim:

“The complaint further alleged that Stille had previously caused a serious automobile accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident herein, Stille had recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.”

Id. at 893.

While the Court in Taylor found that the complaint had sufficiently alleged malice to support a punitive damages claim, the case does not stand for the fact that a claim of driving while intoxicated always supports a finding of malice. As the court held in Dawes v. Superior Court (Mardian) (1980) 111 Cal.App.3d 82, 89:

“[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.”

In Dawes, the court found that the trial court should not have stricken the punitive damages claim because of the additional allegations as to how Mardian was driving, thereby creating a probable risk of injury to others in his intoxicated state. Id. at 89-90.

In this case, Plaintiff’s FAC asserts:

“Defendant was driving his 2002 BMW M3 and caused an auto accident by colliding with Plaintiff’s vehicle. Defendant’s conduct was despicable, willfull [sic] and with conscious disregard of the rights and safety of others because Defendant caused this auto accident while under the influence of alcohol and driving at a high rate of speed, approximately 90 mph, on the 101 freeway. Defendant lost control of his vehicle and collided with Plaintiff’s vehicle causing Plaintiff to lose control of his vehicle and cause his car to roll over. As a result of Defendant[’]s actions, he was arrested and convicted of driving under the influence.”

These assertions, Plaintiff contends, constitute sufficient factual allegations to warrant an award of punitive damages. In support, Plaintiff cites BAJI 14.75 from Fall 2009. BAJI 14.75 from September 2014 provides the following requirements to prove malice for recovering punitive damages in a motor vehicle accident:

“A defendant who,

(1) voluntarily drinks alcoholic beverages to that point of intoxication which sharply impairs defendant’s physical and mental faculties,

(2) knows when the drinking begins that [he] [she] is going to operate a motor vehicle,

(3) operates a motor vehicle in that intoxicated condition,

(4) is aware from the outset of the probable consequences of this conduct, and

(5) willfully and deliberately fails to avoid those consequences, acts with conscious disregard for the [safety] [or] [rights] of others.”

The FAC, however, does not contain factual allegations demonstrating that, at the time Defendant began drinking, he knew that he was going to thereafter operate a motor vehicle, and then voluntarily drank alcoholic beverages to the point of intoxication that his physical and mental faculties were sharply impaired. Thus, BAJI 14.75 would very likely not be given if the evidence at trial were based on the facts contained in the current allegations in the FAC.

In further support of Defendant’s contention that punitive damages are not properly alleged in the FAC, Defendant asserts punitive damages are only proper where the defendant’s conduct was despicable. Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 (citations omitted):

“In 1980, the Legislature amended section 3294 by adding the definition of malice stated in Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854. That definition was amended in 1987. As amended, malice, based upon a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’ The statute’s reference to ‘despicable conduct’ represents ‘a new substantive limitation on punitive damage awards.’ ”

The Court agrees that as the FAC is now worded, while it uses the word “despicable,” it does not contain factual necessary allegations showing that Defendant’s conduct was in fact despicable or that he acted maliciously or with the intent to injure Plaintiff.

Similarly, Defendant contends the factual allegations in the FAC are distinguishable from those in Taylor and Dawes. Unlike the defendant in Taylor, who, at the time of the accident, had only recently completed his probation following a conviction for drunk driving, and was facing another pending criminal drunk driving charge, here, the FAC contains no comparable factual allegations. Although the FAC asserts Defendant was driving under the influence of alcohol and speeding, the FAC fails to allege that Defendant was previously arrested for driving under the influence, or that Defendant had previously caused a motor vehicle accident due to driving while intoxicated.

Moreover, unlike the defendant in Dawes, who zigzagged through a crowded recreation area on a Sunday afternoon in June at 65 miles per hour, the FAC contains no factual allegations that the manner in which Defendant was driving created a probable risk of injury to others. Instead, the FAC alleges, “Defendant lost control of his vehicle and collided with Plaintiff’s vehicle . . . .” Losing control over a vehicle is not comparable to zigzagging. Similarly, driving at approximately 90 mph on a freeway, without more, is not enough to show that Defendant’s driving created a probable risk of injury.

The Court finds that the FAC fails to assert factual allegations that would make an award of punitive damages proper. Thus, this motion to strike is GRANTED.

LEAVE TO AMEND

The FAC represents Plaintiff’s second attempt to allege sufficient facts to support a punitive damages claim. The Court finds good cause to allow Plaintiff a third attempt. Thus, this motion to strike is granted with 20 days’ leave to amend.

PHILLIP DONGHYUN KIM is ordered to give notice of this ruling.

Dated: February 9, 2015

_______________________
Howard L. Halm
Judge, Los Angeles Superior Court