Judge Audra Mori, Case 22STCV13604 2022-10-06 Tentative Ruling

Plaintiff Francisco Oseguera Rodriguez (“Plaintiff”) filed this action against defendants Hossein Sabbagh and Prescience Corporation for damages arising out of a motor vehicle accident. The operative First Amended Complaint (“FAC”) states, in the caption, that Plaintiff’s FAC is “for personal injuries and for punitive damages against Defendant(s).” (FAC at p. 1.)

Defendant Hossein Sabbagh (“Defendant”) moves to strike paragraph 10 of the FAC and Plaintiff’s request for punitive damages at paragraph 11. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant argues that at paragraph 10, Plaintiff alleges that Defendant was distracted by using his cell phone prior to the accident, but the allegations that Defendant’s conduct was in conscious disregard of the safety of others is merely conclusory. Defendant argues that the FAC merely alleges simple negligence: a driver was distracted and caused an accident.

In opposition, Plaintiff argues that cellphone use has surpassed drunk driving as a safety consideration on roads, and that the FAC alleges Defendant knowingly violated the law. Plaintiff contends that the FAC sufficiently pleads a claim for punitive damages under the analysis stated in Taylor v. Superior Court (1979) 24 Cal.3d 890, which concerns driving under the influence.

In reply, Defendant argues that Plaintiff fails to cite any authority establishing punitive damages are appropriate in accidents caused by cellphone use, and that Plaintiff’s claims are unsupported by law. Defendant contends that the FAC’s conclusory allegations are insufficient to state a claim for punitive damages.

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.” “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.)

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; see also Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.) 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 wilfully and deliberately failed to avoid those consequences." (Taylor, 24 Cal.3d at 896.)

Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Here, the FAC alleges that Defendant violated California Vehicle Code §§ 21453(a) and 23123(a).[1] (FAC ¶ 10.) Further:

Defendant HOSSEIN SABBAGH ran a red light because he was driving distracted. His phone was not synced with his vehicle and he knew this and he didn't sync his phone with his vehicle in conscious disregard for the safety of plaintiff and others. He knew that because he did not link his phone to his vehicle that upon it ringing he would be required to obtain it from his pocket or elsewhere and look to see who was calling and decide if he was going to answer the phone. He knew or exercise of reasonable care should have known that this would significantly distract him from driving for long periods of time but did so with conscious disregard for the safety of Plaintiff and others. He further knew or with the exercise of reasonable care should have known that if he wanted to answer a phone call he would have to do so in an illegal manner in violation of the vehicle code and with conscious disregard for the safety of others because he knew he would have to answer the phone using his hands which would cause him to be further distracted from driving for significant periods of time. Knowing all this he still decided to not hook his phone up to the vehicle which he drove on a daily basis and instead when it began ringing immediately prior to this accident he had to locate the phone using his eyes and hand in a distracted manner and therefore was driving at the time of this accident in such a distracted fashion that he did not see that he was going through a red light.

(Ibid.) The FAC alleges Defendant did this “with conscious disregard for the safety of plaintiff …” (Ibid.) In addition, Defendant allegedly lied to police officers at the scene about using his cellphone at the time of the accident. (Ibid.)

The FAC, thus, alleges that at the time of the accident, Defendant was distracted by using his cellphone in an illegal manner because Defendant did not link his cellphone to his vehicle. While the FAC alleges in a conclusory manner that Defendant failed to link his phone to his vehicle for handsfree use in conscious disregard for the safety of others, the FAC does not contain facts showing that Defendant was aware of the probable dangerous consequences of his conduct. (Taylor, 24 Cal.3d at 896.) While the allegations indicate that it was foreseeable that the failure to sync the cellphone to the automobile would cause Defendant to be distracted, they do not show that it was probable that the lack of syncing would cause injury to others.

To the extent Plaintiff contends that Defendant lied to a police officer about using his cellphone, Plaintiff fails to plead any facts showing that this conduct after the accident rendered his conduct at the time of the accident malicious, fraudulent, or oppressive. Moreover, Plaintiff’s citation to Taylor v. Superior Court does not support Plaintiff’s claim the FAC sufficiently states a claim 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. 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." (24 Cal.3d at 896.) 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. “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.” (Id. at 896-97.)

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 [the driver’s] conduct under the circumstances alleged was probable.” (Dawes v. Superior Court (1980) 111 Cal.App.3d 82.)

Unlike in Taylor and Dawes, there no allegations to show that Defendant’s conduct at the time of the accident equates to outrageous or extreme conduct, or that his driving was reckless under the circumstances. The allegations that Defendant failed to link his cellphone to his vehicle for handsfree answering and was driving while distracted are not sufficient alone to state a claim for punitive damages in the FAC. (See Dawes, 111 Cal.App.3d at 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.”].)

Therefore, Defendant’s motion to strike is granted as follows: “Punitive or Exemplary Damages according to proof” in paragraph 11 is stricken from the FAC. As to paragraph 10, the paragraph is not stricken in its entirety. Rather, the allegations that Defendant’s conduct was done “with conscious disregard” is stricken from paragraph 10. The remaining factual allegations therein may stand.

The burden is on the Plaintiff to show in what manner he would amend the FAC, 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.) However, Plaintiff does not request leave to amend.

Defendant’s motion to strike punitive damages is granted as stated above without leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] Vehicle Code § 21453(a) states: “A driver facing a steady circular red signal alone shall stop at a marked limit line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain stopped until an indication to proceed is shown, except as provided in subdivision (b).” Vehicle Code § 23123(a) provides: “A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.”