Case Number: BC674457 Hearing Date: January 16, 2018 Dept: 98

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

PAMELA LIBROTH,

Plaintiff,

vs.

ARTHUR RUTTER and DOES 1 through 20, inclusive,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

CASE NO.: BC674457

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE PUNITIVE DAMAGES AND RELATED ALLEGATIONS FROM PLAINTIFF’S COMPLAINT

Dept. 98

1:30 p.m.

January 16, 2018

On August 31, 2017, Plaintiff Pamela Libroth (“Plaintiff”) filed this action against Defendant Arthur Rutter (“Defendant”) for negligence relating to a May 3, 2016 automobile accident. Plaintiff alleges that Defendant drove his vehicle while under the influence of alcohol or drugs and sideswiped Plaintiff’s vehicle while she was stopped at a red light. Defendant moves to the prayer for punitive damages and related allegations from Plaintiff’s Complaint on grounds she has not alleged sufficient facts showing malice.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code of Civ. Proc., § 437.)

The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated under certain circumstances, but has not held that punitive damages are always appropriate in cases involving driving while intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, held that that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant’s decision to drive while intoxicated made the risk of harm to others probable. (Dawes, supra, 111 Cal.App.3d at p. 89.)

In her Complaint, Plaintiff alleges that Defendant knew he had serious problems with alcohol intake and was aware of the danger of driving while intoxicated. (Complaint, ¶ 25.) Plaintiff alleges that on May 3, 2016, Defendant rapidly consumed large quantities of alcohol to the point of intoxication, knowing he had to drive his vehicle, and then crashed into Plaintiff’s vehicle while she was stopped at a traffic light. (Complaint, ¶ 29, 31.) Plaintiff further alleges Defendant willfully and deliberately engaged in despicable conduct by driving his vehicle knowing the danger to the public. (Complaint, ¶ 30.)

The Court agrees that, without more, Plaintiff’s allegations fail to show malice, fraud, oppression, or a conscious disregard for the rights and safety of others. In her opposition, Plaintiff argues that she alleged sufficient facts showing “despicable conduct,” which supports an award of punitive damages. However, the Court is unconvinced by Plaintiff’s reliance on characterizing Defendant’s conduct as “despicable.” Plaintiff has not alleged facts showing more than “ordinary driving while intoxicated.” (Dawes, supra, 111 Cal.App.3d at p. 89.)

In Taylor and in Dawes, punitive damages were warranted where circumstances constituted more than “ordinary driving while intoxicated.” In Taylor, the driver had an acknowledged history of alcoholism and was driving while simultaneously consuming alcohol. (Taylor, supra, 24 Cal.3d at p. 893.) In Dawes, there was a probable risk of injury to others due to the defendant’s driving while intoxicated, at a high rate of speed, zigzagging through traffic, in the middle of the afternoon, and in locations of heavy pedestrian and vehicle traffic. Such circumstances showing a probable risk of injury to others, have not been alleged here. For example, there are no allegations regarding the time of day, the location of the incident, the amount of traffic, or Defendant’s rate of speed that made injury to others probable, rather than foreseeable.

Therefore, the Motion to Strike is GRANTED with twenty (20) days leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 16th day of January 2018

Hon. Holly J. Fujie

Judge of the Superior Court