Judge: Audra Mori, Case: 21STCV40572, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCV40572    Hearing Date: January 9, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Ivan N. Castellanos and Miguel A. Castellanos (collectively, “Plaintiffs”) filed this action against Defendants Gerardo Martinez (“Gerardo”) and Elida L. Martinez (“Elida”) (collectively, “Defendants”) for damages arising from a motor vehicle accident. 

Following the granting of Defendants’ previous motion to strike, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging that Elida negligently entrusted her vehicle to Gerardo, who caused the subject accident by driving the wrong way into oncoming traffic on a freeway and colliding head on with Plaintiffs’ vehicle.  The complaint alleges causes of action for motor vehicle negligence, general negligence, and negligence “(NIED)”.  (FAC at p. 6.)  The FAC includes a prayer for punitive damages against Gerardo only. 

At this time, Defendants move to strike the prayer for punitive damages against Gerardo. 

Plaintiffs filed an opposition on December 23, 2022, and thereafter filed a supplemental opposition on December 28, 2022.  Defendants filed a reply, and in part contend the opposition and supplemental opposition should be disregarded as untimely.   

As Defendants contend, the opposition, which was served electronically on Defendants, is untimely.  Nine court days before the instant hearing, with an additional two court days to account for electronic service, was December 21, 2022.  (CCP § 1010.6)  Nevertheless, because Defendants filed a reply addressing Plaintiffs’ arguments, and in the absence of any prejudice, the Court will consider the opposition.  However, the supplemental opposition was filed late and after the time any opposition was due.  Plaintiffs do not cite any authority holding that such a filing is permitted or proper.  (See CCP § 1005.)  Further, Plaintiffs did not obtain leave of court to file a supplemental opposition.  Therefore, the Court will not consider Plaintiffs’ supplemental opposition.[1]

The Court notes that Plaintiff improperly filed a supplemental opposition in connection with Defendants’ previous motion to strike related to the original complaint, yet Plaintiffs’ counsel again submitted an improper supplemental opposition.  (Min. Order, Aug. 15, 2022.)  Plaintiffs’ counsel is admonished and put on notice that further improper filings in violation of the law can result in the Court setting an Order to Show Cause Re: Why Plaintiff’s Counsel should not be Sanctioned. 

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 purposes of determining whether an agreement can be reached through a filing of an amended pleading.  (Code Civ. Proc, § 435.5.)

Defendants have fulfilled this requirement prior to filing the motion.  (Mot. Eng Decl. ¶¶ 13-22.) 

            b. Request for Judicial Notice

Plaintiffs request judicial notice be taken of the filings in this matter, including the complaint and petition for guardian ad litem.  The request is granted.  (Evid. Code § 452(d).) 

            c. Analysis

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 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.  (CCP § 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.)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (CCP § 436.)

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (Civil Code §3294.)

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required.  Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences).  Thus it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.  Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages.  Something more than the mere commission of a tort is always required for punitive damages.  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.  (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences."  (Taylor, supra, 24 Cal.3d at 895-96.)  Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Here, Defendants contend the allegations made against Gerardo are solely conclusory and insufficient to support the request for punitive damages.  Defendants argue that the FAC is devoid of any facts showing that Plaintiffs are entitled to punitive damages against Gerardo. 

In opposition, Plaintiffs contend the FAC is sufficient to support a request for punitive damages against Gerardo, as the FAC alleges Gerardo was driving at a high rate of speed the wrong way on the freeway when the collision occurred.  In reply, Defendants again argue the FAC fails to allege facts with particularity and specificity to show malice, oppression, or fraud by Gerardo. 

The FAC alleges that Gerardo drove the wrong way on the freeway at a high rate of speed and collided with Plaintiffs’ vehicle.  (FAC at p. 4.)  Plaintiffs allege “[t]he ‘wrong way’ driving and the manner, direction & high rate of speed of driving by defendant Gerardo … was grossly willful, wanton & reckless, and was done so by and in total & complete conscious & absolute disregard of the rights … to the Plaintiffs, including fleeing from the scene of the collision …”  (Id. at p. 7, capitalizations omitted.) 

            The parties both cite to Taylor v. Superior Court (1979) 24 Cal.3d 890, in disputing whether the FAC supports the request for punitive damages.  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 willfully 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 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 willfully and deliberately failed to avoid those consequences."   (Id., at 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.) 

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.) 

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."

            In this case, the FAC does not allege that Gerado was intoxicated or under the influence of any substances at the time of the accident; there is no allegation that Gerardo deliberately drank or used other substances prior to the accident.  Further, while the FAC alleges in a conclusory manner that Gerardo willfully drove the wrong way on the freeway, there are no specific facts showing Gerardo acted with conscious disregard for the rights or safety of others at the time of the accident.  The FAC factually alleges only that Gerardo drove his vehicle at a high rate of speed with no further facts alleged concerning accident or Gerardo’s driving.  Accordingly, there are no facts pled showing that Gerardo, for example, was aware of the probable dangerous consequences of his conduct.  (Taylor, 24 Cal.3d at 896.)  The complaint, therefore, does not sufficiently allege a claim for punitive damages against Defendants at this time.  (See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90 [“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.”].)

            As to the allegations that Gerardo fled the scene of the accident, the FAC does not allege that Plaintiffs suffered additional damages because of Gerado’s alleged fleeing.  (Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679.)  In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 the court found that a hit and run cannot give rise to damages unless the fact of the hit and run caused additional damages above and beyond the accident itself.  Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run.  It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run.  For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood or death.  If, however, the accident causes immediate soft tissue damage, no amount of aid would reduce or minimize the future damages, and the act of hitting and running would not give rise to additional damages.  If the act of hitting and running, in and of itself, does not give rise to a tort, then it logically follows that the act cannot give rise to a claim for punitive damages.  (Id.)  Further, Plaintiff provided no legal authority for the proposition that a hit and run provides a basis for punitive damages. 

            The request to strike the prayer for punitive damages is granted. 

            The burden is on Plaintiffs to show in what manner they 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.)  In this case, Plaintiffs do not request leave to amend.   Therefore, the motion is granted without leave to amend.  However, Plaintiffs remain free to move for leave to amend as the case progresses should they discover facts that warrant such amendment.

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 9^th day of January 2023