Judge: Daniel M. Crowley, Case: 22STCV16289, Date: 2022-08-10 Tentative Ruling

Case Number: 22STCV16289    Hearing Date: August 10, 2022    Dept: 28

Defendants Samuel Eli Cohen and Byron Augustine Bixler’s Motion to Strike

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On May 16, 2022, Plaintiff Daniel Glasser (“Plaintiff”) filed this action against Defendants Samuel Eli Cohen (“Cohen”) and Byron Augustine Bixler (“Bixler”) for negligence.

On June 24, 2022, Defendants filed a Motion to Strike to be heard on August 10, 2022.

Trial is currently scheduled for November 13, 2023.

PARTY’S REQUESTS

Defendants requests the Court strike the allegations that Defendant was driving under the influence, the request for punitive damages and the request for attorney’s fees.

LEGAL STANDARD

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1), italics added.)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“...[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’...if performed under circumstances which disclose a conscious disregard of the probably dangerous consequences.” (Taylor v. Superior Court (1979), 24 Cal.3d 890, 892.) The Taylor court further provides that driving while intoxicated is, in itself, a strong indicator of the applicability of punitive damages. “Examining the pleadings before us, we have no difficulty concluding that they contain sufficient allegations upon which it may reasonably be concluded that defendant consciously disregarded the safety of others. There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. 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 896-897.)

DISCUSSION

Plaintiff’s complaint alleges that Bixler, while driving under the influence, negligently drove resulting in injuries to Plaintiff. The complaint further alleges that Bixler was operating the vehicle with the consent and knowledge of Cohen.

Driving Under the Influence

Defendants first request the Court strike both mentions of “UNDER THE INFLUENCE (despicable conduct),” claiming it is an unsupported conclusory statement by Plaintiff. The Court disagrees—the core intent of this phrase is a factual allegation that Bixler was driving while intoxicated. There is no need to strike the entirety of the phrase. However, the Court will strike “(despicable conduct)” as that portion is a conclusory statement with no factual value.

Punitive Damages

Defendants’ request is derived from an assertion that Plaintiff has not sufficiently pled substantial enough facts to make a claim for punitive damages, as Plaintiff alleges that Defendant negligently operated his vehicle, resulting in an accident collision.

The Court disagrees, in part. Driving while under the influence can be considered “despicable conduct...carried on...with a willful and conscious disregard of the rights or safety of others.” (Coll Hosp., Inc., supra 8 Cal 4th at 725.) It is widely known that driving while intoxicated is likely to cause serious injury or death to bystanders; it is not mere gross negligence. It exhibits a conscious disregard for the safety of others, and, given the likelihood of serious injury, can be argued to be despicable conduct.

However, the Court notes that driving while intoxicated, alone, is not sufficient to support a claim for punitive damages. There must be additional circumstances which “disclose a conscious disregard of the probable dangerous consequences.” (Taylor, supra 24 Cal.3d 890 at 892.) As Plaintiff’s only allegation relevant to a claim for punitive damages is that Bixler was driving while under the influence, the complaint has not provided an adequate basis to request punitive damages. The Court grants the motion as to this request.

Attorney’s Fees

Defendants provide no argument outlining their request that the Court strike the request for attorney’s fees beyond noting there is no legal basis or factual support for this request. However, the Court does note that there is no applicable statute that would provide a basis for attorney’s fees, as currently plead. As such, the Court grants the motion as to this request.

CONCLUSION

Defendants Samuel Eli Cohen and Byron Augustine Bixler’s Motion to Strike is GRANTED in part, with 30 days leave to amend. The motion is granted as to the request to strike paragraph 11 and 12’s “(despicable conduct)” and the prayer for relief for both “punitive damages” and “attorney’s fees”. The motion is DENIED as to the request to strike paragraph 11 and 12’s “UNDER THE INFLUENCE.” 

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.