Judge Audra Mori, Case 21STCV44920 2023-01-11 Tentative Ruling

Plaintiffs Dillon Hurt (“Hurt”) and Alexandra Naylor (“Naylor”) (collectively, “Defendants”) filed this action against Defendant Robert Andrew Ferkle (“Defendant”) for damages arising from a motor vehicle accident. The complaint purports to assert causes of action for negligence and damages caused by the intoxicated driver of a motor vehicle. The complaint includes a prayer for punitive damages.

Defendant now moves to strike the request punitive damages and related allegations from the complaint. Defendant attempted to meet and confer with Plaintiffs prior to filing the motion, but Plaintiffs did not respond to Defendant’s efforts. (Mot. Rousier Decl. ¶¶ 2-5.) The motion is unopposed.

Defendant argues that that Plaintiffs merely allege in a conclusory manner that Defendant consumed alcoholic beverages with no factual allegations supporting the request for punitive damages. Defendant contends that the complaint’s allegations are insufficient to support an award of punitive damages.

Defendant requests judicial notice be taken of the complaint filed in this action. The request is granted. (Evid. Code § 452(d).)

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 matters 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.)

a. Law Governing Punitive Damages in the Context of Driving Under the Influence

Civil Code § 3294(a) states, “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96.) 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 p. 897.)

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." (Id., at p. 896.) If the 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 stated that 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.)

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] 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. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897.) “[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.” (Id., at p. 897.)

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.) Emphasis added.

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."

Further complicating the matter, in 1987, after all of the foregoing cases were decided, the legislature amended Civil Code § 3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support imposition of punitive damages.

Here, the complaint alleges that Hurt was operating a motor vehicle with Naylor as a passenger when Defendant caused his vehicle to collide with Plaintiffs’ vehicle. (Compl. ¶¶ 7-8, 14.) Plaintiffs allege Defendant was “drunk, or otherwise illegally intoxicated, while operating the vehicle”, and that after the accident, Defendant displayed symptoms of driving under the influence and was arrested. (Id. at ¶ 16.)

Upon information and belief, despite being under the influence of alcohol and/or other drugs or illegal substances, defendant FERKLE knowingly, intentionally, and willingly drove a vehicle on a public thoroughfare while in an intoxicated and impaired state, which rendered him a risky and unsafe driver. Upon information and belief, defendant FERKLE drove through crowded and congested streets in the Los Angeles area where there is a high likelihood of encountering congestion and traffic. In doing so, defendant FERKLE acted with a conscious disregard of the rights and safety of others, including plaintiff. He knew that his impaired ability to drive would likely cause harm to others as he was impaired, intoxicated, and incapable of operating a vehicle safely, and understood and knew that an uncontrolled vehicle is a known risk of probable harm to others. Upon information and belief, defendant FERKLE drove erratically and dangerously, and at high speed, ultimately rear-ending plaintiff’s vehicle

(Id. at ¶ 17.) Additionally, “upon information and belief, defendant FERKLE acted with malice in that he deliberately disregarded the safety and/or rights of plaintiff in that rather than stop and provide aid to plaintiff who was injured as a result of his conduct, he fled the scene and provided no aid to plaintiff whatsoever, which contributed to the general damages sustained by plaintiff.” (Id. at ¶ 18.)

The complaint, thus, alleges that Defendant operated his vehicle while intoxicated and caused an accident with Plaintiffs’ vehicle. There are no factual allegations showing a conscious and deliberate disregard of the safety of others by Defendant, or any allegations of fraudulent misrepresentations against Defendant. Further, there are no factual allegations against Defendant of any despicable conduct that subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights. The key allegations in support of punitive damages are made on information and belief without a showing of facts that led to the belief or are conclusory. This is insufficient to support a request for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [“the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of "oppression, fraud, or malice, express or implied."]) The allegation that Defendant drove under the influence of alcohol alone is not sufficient to state a claim for punitive damages. If it were, it would essentially mean anyone driving under the influence would be subject to punitive damages. Moreover, merely causing a collision with Plaintiffs’ vehicle is a common element in any automobile accident.

As to the allegation that Defendant fled the scene, the complaint does not allege with any specificity or factual support 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.)

Defendant’s motion to strike the request for punitive damages and related allegations is granted.

The burden is on Plaintiffs 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.) In this case, Plaintiffs do not oppose the motion and do not request leave to amend.

Hon. Audra Mori

Judge of the Superior Court