Judge: Audra Mori, Case: 22STCV30386, Date: 2023-03-08 Tentative Ruling

Case Number: 22STCV30386    Hearing Date: March 8, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

JENNESSA SALCIDO,

                        Plaintiff(s),

            vs.

 

TYLER CHRISTIAN ROTH, ET AL.,

 

                        Defendant(s).

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      CASE NO: 22STCV30386

 

[TENTATIVE] ORDER GRANTING IN PART MOTION TO STRIKE WITHOUT LEAVE TO AMEND

 

Dept. 31

1:30 p.m.

March 8, 2023

 

1. Background

Plaintiff Jennessa Salcido (“Plaintiff”) filed this action against Defendant Tyler Christian Roth (“Defendant”) for damages arising from a motor vehicle accident.  Following the granting with leave to amend of Defendant’s motion to strike portions of the complaint, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for motor vehicle and general negligence and includes a prayer for punitive damages.

 

Defendant now moves to strike the punitive damages and portions of the FAC.  Any opposition to the motion was due on or before February 23, 2023.  To date, no opposition has been filed.   

 

Defendant argues that the FAC fails to set forth facts to support the recovery of punitive damages.  Defendant argues the FAC does not allege any despicable conduct, malicious, fraudulent, or oppressive conduct, and instead merely contains legal conclusions. 

 

2. Motion to Strike

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. 

 

b. Analysis Re: Pages 3 and 8 of FAC

Here, the FAC alleges Defendant is guilty of malice and oppression and states the following facts support the request for punitive damages:

 

On July 24, 2021, Defendant, Tyler Christian Roth, operated a 2019 Nissan Altima (hereinafter "ALTIMA") under the influence of alcohol in total wanton disregard for the safety of others in general public on roadways, streets, sidewalks, and the like, in violation of California Code Sections 23152 and 23153 et seq. Plaintiff is informed and believes and based thereon alleges the foregoing conduct by Defendants was done in conscious disregard of Plaintiffs rights with oppression, fraud, and malice, thereby justifying an award of punitive damages against the Defendants according to proof, and pursuant to California Civil Code§ 3294. Specifically, Plaintiff alleges on information and belief, that Defendant ROTH had prior accidents and/or a habit of driving while intoxicated, and prior knowledge of the effect of alcohol upon his person and that such intoxicants prevented him from safely driving and made it highly probable he would crash the car. Said behavior was similar, if not identical, to the conduct of the intoxicated driver defendant in the case Dawes v. Superior Court (Mardian) (1980) 11 Cal.App.3d 82, in which case the court found such allegations of fact sufficient "from which the conscious disregard of probable injury to other may reasonably be inferred" and supporting allegations of punitive damages, which the Dawes court held as in no way inconsistent with the decision in Taylor v. Superior Court (1979) 24 Cal.3d 890. On the date of the subject accident, Defendant ROTH was aware of the probable dangerous consequences of driving a motor vehicle while under the influence of alcohol and/or controlled substances, and defendant ROTH willfully and deliberately failed to avoid those consequences. Defendant knew or should have known on the date of the subject accident and at the time he ingested alcohol and/or other such substances that he would thereafter operate a motor vehicle. Defendant understood, at the time he entered the motor vehicle and got behind the wheel of said motor vehicle intending to and actually driving the motor vehicle that one who consumes alcohol and/or other such substances to the point of intoxications and thereafter operates a motor vehicle demonstrates a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. Furthermore, defendant ROTH did not employ any reasonable measures to avoid the consequences of driving under the influence of alcohol and/or other such substances including, but not limited to, calling a cab, calling for an Uber, and/or calling a friend or relative for alternate transportation.

 

(FAC at p. 6.) 

 

            Thus, the FAC alleges that Defendant operated his vehicle under the influence of alcohol, and that Defendant had prior accidents and/or a habit of driving while intoxicated.  The FAC alleges that Defendant had prior knowledge that driving while intoxicated made it highly probable that he would crash his car.  Additionally, the FAC alleges that at the time he ingested alcohol, Defendant knew he would have to operate a motor vehicle, and that Defendant failed to avoid driving while intoxicated, such as by calling a cab or arranging for alternative transportation.  Plaintiff’s allegations do not rise to the level of malice or oppression, as defined by the Code.  There are no factual allegations showing a conscious and deliberate disregard of the safety of others by Defendant.  The allegations that Defendant drove under the influence of alcohol and failed to arrange for alternative transportation are not sufficient to state a claim for punitive damages.  If they were, it would essentially mean anyone driving under the influence would be subject to punitive damages.  While Plaintiff alleges that Defendant had prior knowledge that drinking and driving made it highly probable that Defendant would crash his car, there are no factual allegations showing that Defendant knew that any such accident would subject Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights.  The FAC’s allegations are 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."].)  Moreover, merely causing a collision with Plaintiff’s vehicle is a common element in any automobile accident.  Lastly, although the FAC alleges that Defendant’s behavior is identical to the conduct of the intoxicated driver in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, the FAC does not contain any factual allegations as to those in Dawes showing injury to others was probable.  (See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90 [noting, “’[A]llegations 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.’”].) 

 

Based on the foregoing, Defendant’s motion to strike is granted as to the request for punitive damages.  The burden is on Plaintiff to show in what manner she can 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.)  Plaintiff does not oppose the motion, which is Defendant’s second motion to strike punitive damages allegations, and thus, fails to show that there is a reasonable possibility the FAC can be cured to state a claim for punitive damages against Defendant. 

 

            The motion to strike is granted without leave to amend. The following portions of the FAC are ordered stricken:   

Page 3, paragraph 10, subpart f, the portion noted Exemplary Damages;

Page 3, paragraph 14, subpart a.(2) in its entirety; and

Page 8; in its entirety, in which Plaintiff pleads for exemplary and punitive damages against Defendant. 

 

c. Analysis Re: Pages 5, 6 and 7 of FAC

            Defendant further moves to strike pages 5, 6 and 7 of the FAC.  Page 5 of the FAC contains Plaintiff cause of action for general negligence against Defendant, and pages 6 and 7 are attachments to the general negligence claim.  While Defendant establishes that the FAC does not properly plead that Plaintiff is entitled to punitive damages, Defendant does not provide any authority or analysis showing that the above allegations are improper.  Defendant’s memorandum of points and authorities fails to address the request to strike these pages. 

 

            Furthermore, pages 5, 6 and 7 of the FAC, and the allegations that Defendant was driving under the influence of alcohol, provide context for Defendant’s liability and the potential cause of accident.  The allegations are therefore relevant to this action.  Defendant does not otherwise articulate any reasons these pages or the allegations therein should be stricken.[1]

 

            The request to strike pages 5, 6, and 7 is denied.     

 

Defendant is ordered to give notice. 

 

PLEASE TAKE NOTICE:

 

Dated this 8th day of March 2023

 

 

 

 

Hon. Audra Mori

Judge of the Superior Court

 



[1] To the extent Defendant is moving to strike Plaintiff’s general negligence cause of action, the proper vehicle for challenging a cause of action is a demurrer, not a motion to strike.