Judge: Jill Feeney, Case: 21STCV45171, Date: 2022-08-18 Tentative Ruling

Case Number: 21STCV45171    Hearing Date: August 18, 2022    Dept: 30

Department 30, Spring Street Courthouse
August 18, 2022
Motion to Strike Punitive Damages from Plaintiffs’ Complaint filed by Defendants Candelaria C. Estrada and Carlos E. Estrada 


The motion is granted with leave to amend.

If Plaintiffs wish to amend the complaint, Plaintiffs must do so within 30 days after the date of this order.  

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order. 


This is an action for motor vehicle negligence arising from a vehicle collision which took place in December 2019. Defendants Carol and Carlos E. Alival Estrada filed the instant demurrer against Plaintiff’s Complaint.

On March 28, 2022, Plaintiffs named DGSD Holdings, LLC as another Defendant.

On May 20, 2022, Rodrigo F. Manuel filed a cross-complaint against Alibi East & Blackbear Alley Bar and DGSD HOLDINGS, LLC. 

On June 2, 2022, Defendant DGSD Holdings filed a notice of related case for Mack Goldsbury v. Alibi East & Back Alley Bar, et al. 
On June 10, 2022, Candelaria and Carlos Estrada filed their motion to strike. 


Moving Arguments

Moving Defendants seek to strike line 37, page 10 of Plaintiff’s complaint (as it relates to Defendant Carlos Estrada) : 


Moving Defendants argue that there are no factual allegations of malice, oppression, or fraud in the Complaint. Moving Defendants additionally argue driving under the influence is not malice.                                                                                                                                                                                              
Opposing Arguments

In opposition, Plaintiffs objected to the motion to strike on the grounds that not all parties and attorneys had been served. The motion was not served on the parties in the related cases. Additionally, Plaintiffs state the opposition was filed late because Plaintiff’s counsel was attempting to serve all appropriate parties. 

Reply Arguments

Moving Defendants did not reply, but filed an amended proof of service of summons to include DGSD Holdings, Mack Goldsbury, Janet Goldsbury, Deomarlee Sy, Estelita Sy, and Rodrigo Francisco Manuel.

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. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

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. (College Hospital, 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, subd. (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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code § 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must 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.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) 

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which 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.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) 

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).) 

Service of Process

Defendants did not timely serve all parties in all the related cases. Going forward, Defendants must do so. 

However, the Plaintiffs to whom the motion is directed were able to file an opposition, which the Court has considered. Therefore, the Court will consider the merits of the motion. 

Meet and Confer

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike.  (See Code of Civ. Proc. §§ 430.41; 435.5.) 

Moving Defendants’ Counsel’s declaration and attached emails appears to show Moving Defendants attempted to meet and confer via telephone and Plaintiff’s counsel refused to do so. (Phan Decl., Exhibit B.) Moving Defendants adequately attempted to meet and confer prior to filing their motion. The Court notes that going forward all parties will be expected to meet and confer as required by the rules. 


Moving Defendants seek to strike Plaintiffs’ prayer for punitive damages on the grounds that they have not alleged facts to show Defendant Carlos Avila acted with conscious disregard for the safety of others or demonstrated despicable conduct.

Plaintiffs’ Complaint states that the parties were involved in a vehicle collision in December 2019 that caused a total of five collisions. (Compl., ¶18.) Defendant Rodrigo Manual was driving his vehicle at an unsafe speed when he collided with a guardrail and came to rest blocking the #5 lane of the 210 freeway. (Id., ¶19.) Subsequently, Defendant Jose A. Vargas, who was under the influence of alcohol and driving at an unsafe speed, collided with Manuel’s vehicle, spun out of control, and collided with another vehicle driven by Plaintiff Deo Sy. (Id., ¶21.) Sy’s vehicle then collided with Plaintiff Maria Jose Villegas’s vehicle. (Id., ¶22.) Another vehicle driven by Carlos E. Avila Estrada, who was driving at an unsafe speed under the influence of alcohol and/or drugs, then struck Sy’s vehicle. (Id., ¶23.) Plaintiffs request punitive damages against Jose A. Vargas and Carlos Estrada because they were driving under the influence of alcohol or other substances. (Id., ¶37.) 

The Complaint alleges that “Defendants Alibi Bar and/or Pomona Beach…knew or in the exercise of reasonable care should have known that Defendant Carlos Estrada consumed alcoholic beverages during the hours that he was working for Defendants Alibi Bar and Pomona Beach.” (Compl., ¶32.) Additionally, “Candelaria C. Estrada was aware or with the exercise of reasonable care should have been aware that Carlos Estrada consumed alcohol during the hours of his employment and nevertheless Candelaria C. Estrada entrusted Carlos Estrada with” her vehicle. (Compl. ¶34.P)

Moving Defendants’ motion turns on whether the facts alleged establish malice on the part of Defendant Carlos Estrada. 

The California Supreme Court has held 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.”  (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 892.)  Punitive damages may be sought where the allegations lead to the conclusion that “defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”  (Id. at pp. 895-896.)  In Taylor, the Supreme Court issued a writ directing the trial court to overrule the defendant’s demurrer to plaintiff’s punitive damages prayer based on a finding that the plaintiff’s allegations in that case met this standard. 

The complaint in Taylor alleged, not only that defendant was intoxicated at the time of the accident, but also that he “had previously caused a serious accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident . . . [defendant there had] recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.” (Id. at 893.) What is more, the complaint alleged that defendant was already intoxicated and continuing to drink alcohol in his vehicle at the time of the accident. (Ibid.) 

After Taylor, the Legislature amended the “malice” standard interpreted by the Supreme Court in that case to add the requirement that malicious conduct under section 3294 be shown to be “despicable” and “willful.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) As noted above, “[t]he statute’s reference to ‘despicable conduct’ represent[ed] ‘a new substantive limitation on punitive damage award.’” (Ibid. (quoting College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 725).) 

The Court is aware of no case holding that an allegation of intoxicated driving standing alone can support a punitive damages prayer in an automobile accident case. Instead, the Court is required to assess whether a plaintiff’s allegations against a particular defendant, including the circumstances of the intoxication, the intoxicated driving, other misconduct leading to the accident, and prior bad acts and history, are sufficient taken together to show that defendant acted with a willful and conscious disregard for the probable dangerous consequences of his actions and that, under the circumstances, his conduct should be considered so vile, base, contemptible, or loathsome as to be deemed despicable.  (See e.g., Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 936 (there was sufficient evidence of despicable conduct where an intoxicated defendant drove at a high rate of speed through a stale red light without stopping, but jury could still decline to award punitive damages); Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 85, 90 (characterizing intoxicated driving at excessive speed zigzagging around stream of traffic in area with many pedestrians and bicyclists as sufficiently “outrageous” and “reprehensible” to warrant punitive damages).) 

Here, the facts stated in the Complaint are insufficient to show that Moving Defendant Carlos Estrada engaged in conduct rising to the level of despicable  conduct and that he was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. Plaintiffs’ complaint states that Carlos Estrada drank alcohol at his workplace prior to operating Candelaria Estrada’s car, drove at an unsafe speed, and collided with Sy’s vehicle. These facts alone do not demonstrate that Carlos Estrada’s conduct was so vile, base, and contemptible, or loathsome as to be deemed despicable and that he was aware of the probable dangerous consequences of his conduct. Furthermore, the allegations of the Complaint do not support the conclusion that Defendant Estrada was driving under the influence. The complaint alleges that Defendant Carlos Estrada drank alcohol at his place of work prior to driving but does not allege facts supporting the conclusion that Defendant Carlos Estrada was driving under the influence at the time of the accident.