Judge: H. Jay Ford, III, Case: 24SMCV03324, Date: 2024-11-07 Tentative Ruling

Case Number: 24SMCV03324    Hearing Date: November 7, 2024    Dept: O

  Case Name:  Frank v. Veliz, et al.

SUBJECT:                 MOTION TO STRIKE PUNITIVE DAMAGES

MOVING PARTY:   Defendants Chase Fitzgerald McIntyre and Charles McIntyre

RESP. PARTY:         Plaintiff Jodi Frank

TENTATIVE RULING

            Defendants Chase Fitzgerald McIntyre and Charles McIntyres’ Motion to Strike Punitive Damages from Plaintiff Jodi Frank’s Complaint is DENIED. Plaintiff’s allegations of Defendant’s alleged intoxication at the time of the incident at issue rise to a level of malice needed for a punitive damages claim under CC §3294.

REASONING

            “[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) A motion to strike may be directed to all or a portion of a complaint, cross-complaint, answer, or demurrer. (See Code Civ Proc., § 435, subdiv., (a).) On a motion to strike, a judge must read the complaint as a whole, considering all parts in their context, and must assume the truth of all well-pleaded allegations. (See Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628, as modified (Feb. 27, 2020).)

            As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 435.5, subdiv., (a)(1).) “The parties shall meet and confer at least five days before the date a motion to strike must be filed.” (Code Civ. Proc., § 435.5, subdiv., (a)(2).)

            A judge may, on a motion to strike made under CCP § 435 or at any time at the judge's discretion, “strike out any irrelevant, false, or improper matter in a pleading,” on terms the judge “deems proper.” (Code Civ. Proc., § 436(a).).  “[I]rrelevant . . . matter” means an immaterial allegation in a pleading and includes an allegation that is not essential to the statement of a claim or defense. (Code Civ. Proc. § 431.10(b)(1) and (c).)

            CC §3294(a) provides, “In 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.” (Cal Civ. Code § 3294, subdiv. (a).)

            “Malice is ‘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.’ (Civ. Code, § 3294, subd. (c)(1).) Oppression is ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ (Civ. Code, § 3294, subd. (c)(2).) Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as having the character of outrage frequently associated with crime.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

            “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, 897.)

            Defendants Chase Fitzgerald McIntyre (“Chase”) and Charles McIntyre (“Charles”) (collectively “Defendants”) argue that Plaintiff Jodi Frank (“Plaintiff”) has not alleged particularized facts to support a punitive damages award against Defendants, and conclusory allegations and unsubstantiated facts that Defendant Chase was intoxicated is not enough to establish malice. (Motion, pp. 8–9.)

            Defendants argue that Plaintiff’s Complaint does not meet the punitive damages standards under both Taylor and Dawes. In Taylor numerous allegations were included in the complaint to reach a punitive damages claim including “defendant's history of alcoholism, his prior arrests and convictions for drunk driving, his prior accident attributable to his intoxication, and his acceptance of employment involving the transportation of alcoholic beverages.” Taylor. (Taylor, supra, 24 Cal.3d at p. 896.) 

            The Taylor court went onto state that the additional factors alleged in the complaint are not “essential prerequisites to the assessment of punitive damages in drunk driving cases.” (Ibid.)  In Dawes, the Court found that punitive damages were sufficiently supported by allegations that the driver, while intoxicated, ran a stop sign, zigzagged in and out of traffic at speeds in excess of 65 mph in a 35 mph zone, all with reckless disregard of the probable consequences of said conduct and with reckless disregard of the safety of others. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87–88.). “[T]he term “malice” as used in Civil Code section 3294 has been interpreted as including a conscious disregard of the probability that the actor's conduct will result in injury to others.” (Id., at p. 88.) “The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (Id., at p. 89.)

            Plaintiff’s complaint states the following allegations:

1.     Defendant CHASE FIZGERALD MCINTYRE, for a substantial period of time, had known that he had serious problems with alcohol intake or drug use, and was well aware of the serious nature of driving under the influence of alcohol or drugs and had a tendency, habit, history, practice, proclivity, and inclination to drive a motor vehicle while under the influence of alcohol or drugs (Compl., ¶ 28.)

2.     Upon information and belief, on or about August 13, 2022, CHASE 4 FITZGERALD MCINTYRE consumed alcohol and/or drugs to the point of legal intoxication, and knew he would drive a motor vehicle, knowing full well that the drinking of alcoholic beverages or use of drugs would occur prior to any attempt to drive his motor vehicle (Id., ¶ 29.)

3.     Defendant CHASF. FITZGERALD MCINTYRE knew that consuming this quantity of drugs or alcohol would substantially impair his ability to drive, and chose to willfully, wantonly, and knowingly consume said excessive amounts of alcoholic beverage or drugs, knowing that he would be required to drive himself without the assistance of any other persons. While consuming said drugs or alcohol, Defendant CHASE FITZGERALD MCINTYRE knew that he would then immediately go to his automobile and operate said vehicle on said highway. (Id., ¶ 30.)

4.     Defendant CHASE FITZGERALD MCINTYRE knew that the consumption of drugs and alcoholic beverages can and does cause an increased risk of accidents, as opposed to not ingesting drugs and alcoholic beverages prior to driving. Defendant CHASE FITZGERALD MCINTYRE knew the amount of alcohol that he consumed and despite knowing of the dangers to the driving public, decided to drive his automobile after the rapid consumption of drugs or alcohol. Defendant CHASE FITZGERALD MCINTYRE was arrested and/or charged with the violation of driving under the influence. Defendant CHASE FITZGERALD MCINTYRE had no drugs or alcohol from the time of the accident till the time that he was tested. (Id., ¶ 31.)

5.     Despite knowing he was unfit to drive, Defendant CHASE FITZGERALD MCINTYRE entered the I-405 northbound. Defendant CHASE FlTZGERALD MCINTYRE observed cones on the 1-450 northbound freeway and knew that construction was occurring and that extra caution was required. Defendant CHASE FITZGERALD MCINTYRE knew or should have known that he was in a construction zone and that the speed limit was 55 mph; however, he chose to drive at speeds in excess of 70 mph. (Id., ¶ 32.)

6.     Defendant CHASE FITZGERALD MCINTYRE having rapidly ingested a large amount of drugs or alcohol knew, or should have known, of the probable seriousness of injury to others, which would result from their driving, and thus demonstrated a conscious disregard for the rights and safeties of others, thus constituting despicable conduct and malice. (Id., ¶ 33.)

7.     Defendant CHASE FITZGERALD MCINTYRE was under the influence of alcohol and had driven under the influence of alcohol and/or drugs on prior occasions and was fully aware of the probable dangerous consequence of his conduct. Defendant CHASE FITZGERALD MCINTYRE willfully and deliberately engaged in despicable II conduct to drive his automobile knowing the danger to the public which in fact was a cause of the accident heretofore mentioned. (Id., ¶ 34.)

8.     Defendant CHASE FITZGERALD MCINTYRE 14 did, willfully and voluntarily, consume sufficient quantities of alcohol and/or drugs with knowledge that he would thereafter be operating a motor vehicle. (Id., ¶ 35.)

            Plaintiff has alleged all the necessary facts to reach a claim for punitive damages under Taylor and Dawes. The Court must accept all allegations as true at the pleading stage, and thus Defendant’s arguments that Plaintiff’s alleged facts about Defendant’s history of excessive alcohol are incorrect, or false, cannot be considered. (See Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628, as modified (Feb. 27, 2020) [“We read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)