Judge: Andrew E. Cooper, Case: 23CHCV00082, Date: 2023-05-09 Tentative Ruling

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Case Number: 23CHCV00082    Hearing Date: May 9, 2023    Dept: F51

Dept. F-51

Date: 5/9/23

Case #23CHCV00082

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO STRIKE

Motion Filed: 4/13/23

MOVING PARTY: Defendants Herbert Reyes, an individual; and Bright Star Painting, Inc., a California Corporation (collectively, “Defendants”)

RESPONDING PARTY: Plaintiffs Gyumshout Khachatrian, an individual; and Mary Piliposian Khachatrian, an individual (collectively, “Plaintiffs”) 

NOTICE: OK

RELIEF REQUESTED: Defendants move to strike the prayer for punitive damages in Plaintiffs’ first amended complaint (“FAC”).

TENTATIVE RULING: The motion is denied. Defendants shall file and serve an answer to Plaintiffs’ FAC within 30 days of this hearing date.

BACKGROUND¿ 

This is a personal injury action in which Plaintiffs were the driver and passenger of a Chevrolet vehicle which was allegedly struck by Defendants’ Ford vehicle three times on 5/19/21. (FAC ¶¶ 13–14.) Plaintiffs allege that defendant Bright Star Painting, Inc. (“Bright Star”) owned, controlled, and/or maintained the Ford vehicle. (Id. at ¶ 10.)

Plaintiffs allege that they were stopped at a red light at an intersection, when defendant Reyes, a Bright Star employee and the driver of the Ford, rear-ended Plaintiffs’ Chevrolet while under the influence of alcohol and/or drugs. (Id. at ¶¶ 12, 14.) “After the first collision, in an attempt to flee the scene of the accident, defendant REYES’ FORD rear-ended the CHEVROLET for the second time. In a condition of sharply impaired physical and mental faculties and judgment, defendant REYES was unable to control the FORD and struck the CHEVROLET for the third time, inflicting severe physical injury to PLAINTIFFS’ body.” (Id. at ¶ 14.) “After three consequent collisions, defendant REYES got out of the FORD and fled the scene of the accident but was arrested by police officers. He subsequently was convicted for driving a motor vehicle under influence and for hit-and-run.” (Id. at ¶ 15.)

On 1/11/23, Plaintiffs filed their original complaint against Defendants, alleging the following causes of action: (1) Negligence/Negligence Per Se; and (2) Vicarious Liability. On 3/27/23, Plaintiffs filed their FAC, alleging against Defendants the following causes of action: (1) Motor Vehicle Negligence/Negligence Per Se; (2) Vicarious Liability; and (3) Negligent Entrustment.

On 4/13/23, Defendants filed the instant motion to strike. On 4/24/23, Plaintiffs filed their opposition and request for judicial notice. On 5/2/23, Defendants filed their reply.

ANALYSIS

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. (Code Civ. Proc., § 436, subd. (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. (Id. at subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)¿Here, Defendants move to strike the portions of Plaintiff’s FAC relating to punitive damages.

Meet and Confer¿ 

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are required to meet and confer at least five days before the date a motion to strike must be filed, otherwise the moving party is granted a 30-day extension to file the motion. (Ibid.)¿ 

Here, Defendants’ counsel declares that he met and conferred with Plaintiffs’ counsel by telephone on 3/16/23, and by email on 3/17/23, 3/27/23, and 3/28/23 to discuss the issues raised in the instant motion to strike, but the parties were unable to come to a resolution. (Decl. of Craig W. Mackie, ¶ 6.) Therefore, the Court finds that Defendants have satisfied the preliminary meet-and-confer requirements under Code of Civil Procedure section 435.5, subdivision (a).)

¿¿ 

Punitive Damages 

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) 

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) 

Malice

Here, Defendants argue that Plaintiffs have insufficiently alleged facts to support their prayer for punitive damages against defendant Reyes because they have not alleged facts to support a finding of malice, fraud or oppression. Defendants argue that the alleged facts of the instant case do not rise to the level of malice alleged in prior personal injury cases against intoxicated drivers which allowed the recovery of punitive damages.

Defendants assert that punitive damages are recoverable in such cases only if the intoxicated driver operated the vehicle “under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Defs.’ Mot. 7:21–22, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) In Taylor, the defendant was a known alcoholic with a “tendency, habit, history, practice, proclivity, or inclination to drive a motor vehicle while under the influence of alcohol,” as shown through numerous prior arrests and convictions for drunken driving. (24 Cal.3d at 893.)

Here, Defendants argue that Plaintiffs cannot maintain their claim for punitive damages against Reyes because the allegations against him in the FAC do not rise to the severity of the allegations made against the defendant in Taylor. (Defs. Mot. 9:17.) However, as Plaintiffs observe, the Taylor court made sure to note that “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.” (24 Cal.3d at 896.) The Court finds that Defendants misconstrue the Supreme Court’s holding in Taylor to require plaintiffs to plead a defendant’s history of numerous prior instances of drunk driving, when it evidently states the contrary.

Even if the Court were inclined to follow Defendants’ reasoning and require the heightened showing of culpability suggested by Defendants, Plaintiffs have alleged that Reyes “had tendency, habit, history, practice, proclivity, or inclination to drive a vehicle under the influence of alcohol and had previously been arrested, and on or about January 13, 2012, was convicted for driving under the influence.” (FAC ¶ 28.) Additionally, Plaintiffs have alleged that Reyes consumed alcoholic drinks and knew that he was going to operate a vehicle afterwards, rear-ended Plaintiffs’ vehicle three times, attempted to flee the scene of the accident, was later arrested and convicted for driving under the influence and hit-and-run. (Id. at ¶¶ 14, 23.)

The Court agrees with Plaintiffs that the facts alleged, “taken in context as a whole, demonstrate that Reyes’ conduct was a conscious and deliberate disregard for the safety and rights of others.” (Pls.’ Opp. 6:26–27.) The Court finds that these factual assertions are sufficient at the pleading stage to allege malicious conduct warranting a prayer for punitive damages. (Civ. Code § 3294, subd. (c)(1).) Accordingly, the motion to strike Plaintiffs’ prayer for punitive damages as against defendant Reyes is denied.

Employer Liability

“An employer shall not be liable for [punitive] damages … based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).)

Here, Defendants argue that “the complaint alleges no specific facts as to how the DEFENDANT (employer) had advance knowledge of the unfitness of the employee or how the DEFENDANT (employer) ratified any conduct by an employee. As such, the complaint is insufficient to plead punitive damage against the employer.” (Defs.’ Mot. 10:12–15.)

However, Plaintiffs allege in their FAC that prior to the collision, Bright Star was aware of Reyes’ prior drunk driving arrest and conviction and was thereby “aware of the high danger and the severity of the risk of injury to the general public, including PLAINTIFFS, of permitting defendant REYES to operate a motor vehicle while under the influence of alcohol or other controlled substances.” (FAC ¶ 53.) Plaintiffs further allege that Bright Star ratified Reyes’ conduct and “acted in conscious disregard of the rights and safely of the public, including PLAINTIFFS, by entrusting a vehicle to defendant REYES while under the influence of alcohol or other controlled substances.” (Id. at ¶ 56.)

The Court finds these allegations sufficient to warrant a prayer for punitive damages against Bright Star for its employee’s conduct under Civil Code section 3294, subdivision (b). Defendants argue that Reyes’ prior arrest and conviction was over nine years ago, and should therefore be disregarded in favor of a finding that “there are no pleadings that the company had an awarness [sic] of current drinking and driving problems or other criminal behavior of the defendant driver.” (Defs.’ Reply, 2:28–3:2.)

The Court declines to make such a factual finding at the pleading stage. Accordingly, the motion to strike Plaintiffs’ prayer for punitive damages as against defendant Bright Star is denied.

CONCLUSION¿ 

The motion is denied. Defendants shall file and serve an answer to Plaintiffs’ FAC within 30 days of this hearing date.