Judge: Anne Hwang, Case: 23STCV15871, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV15871    Hearing Date: October 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Defendant Steven Kelman (Defendant) moves to strike portions of Plaintiff Jonathan Bowles’ (Plaintiff) complaint. Plaintiff alleges that Defendant is responsible for an automobile accident and was driving under the influence. Plaintiff seeks punitive damages. Defendant moves to strike allegations relating to punitive damages. Plaintiff does not oppose the motion.

Defendant moves to strike the following portions of the complaint:

1)      Page 2, ¶ 10 in its entirety

2)      Page 2, ¶ 11, “under the influence (despicable conduct)”

3)      Page 4, number 6, “For punitive damages”

LEGAL STANDARD

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)    

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.  The additional component of ‘despicable conduct’ must be found.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.) 

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) 

MEET AND CONFER

“Before filing a motion to strike . . . 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).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)  

Counsel for Defendant has provided the proper declaration and exhibits describing their effort to meet and confer. (Flowers Decl. ¶ 3-4.)     

DISCUSSION

Here, the complaint states in relevant part:

“At all times mentioned in this complaint, defendant STEVEN KELMAN , WERE driving and operating the automobile UNDER THE INFLUENCE (despicable conduct) with the consent, permission, and knowledge of defendant, STEVEN KELMAN, and/or or authorized agents.”

(Complaint ¶ 10.)

Based on these pleadings, the Court finds that Plaintiff’s allegations, alone, do not support punitive damages against Defendant. The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated under certain circumstances, but it 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.) In Taylor, the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident. (Id. 893.) Further, the defendant accepted employment which required him both to call on various commercial establishments where alcoholic beverages were sold, and to deliver or transport such beverages in his car. (Id.) Finally, the complaint alleged that at the time of the accident, defendant was transporting alcoholic beverages and simultaneously driving while consuming an alcoholic beverage. (Id.) The California Supreme Court found these circumstances to be circumstances of aggravation or outrage and there was “no valid reason whatever for immunizing the driver himself from the exposure to punitive damages given the demonstrable and almost inevitable risk visited upon the innocent public by his voluntary conduct as alleged in the complaint.” (Id. at 898.)

Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, clarified 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 89.) In Dawes, the circumstances constituted more than the “ordinary driving while intoxicated,” where 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. (Id. at 88-89.)

Here, Plaintiff’s Complaint does not allege specific facts that show malice, fraud, or oppression. Instead, the Complaint only alleges that Defendant was driving “under the influence.” (Complaint ¶ 10, 11.) As discussed in Dawes, this alone does not convey that Defendant’s conduct created a probable risk to others. As a result, it does not meet the standard for malice because it does not allege specific facts to support that finding. Merely stating as a conclusion that the conduct was despicable is not enough.

Therefore, the Court finds that Plaintiff’s complaint fails to sufficiently allege facts under Civil Code section 3294 to support Plaintiff’s prayer for punitive damages.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff does not oppose the motion or request leave to amend. Therefore, Plaintiff has not met their burden.

CONCLUSION AND ORDER

Therefore, the Court GRANTS the motion to strike without leave to amend.

Defendants shall provide notice of the Court’s order and file a proof of service of such.