Judge Jill Feeney, Case 22STCV19263 2022-10-14 Tentative Ruling

This is an action for negligence, negligent hiring and supervision or retention, and negligent entrustment arising from a vehicle-pedestrian collision which took place in September 2020 and resulted in the death of Decedent Nigoghos Sarkeesian. On June 13, 2022, Plaintiffs Fyona Mudsyan, Nigoghos, Anita Sarkeesian-Asadorian, and the Estate of Sarkees Nigoghos Sarkeesian, by and through its successor-in-interest, Fyona Musdyan filed their Complaint against Defendants Akop and Ovsep Daniyelyan, and Alejandro and Mariana Garcia, and Glendale Dodge, LLC.

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 Civ. Proc., section 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. section 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, section 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, section 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).)

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. (Code of Civ. Proc. sections 430.41; 435.5.)

Moving Defendants’ Counsel’s declaration and attached emails appears to show Moving Defendants attempted to meet and confer via email. (Carranza Decl., ¶3; Exhibit B.) This is insufficient under Code of Civ. Proc., section 435.5, subd. (a), which requires that the parties meet in person or by telephone. Failure to confer, however, is not a basis for denying the motion.

Plaintiffs allege that Decedent was struck by Defendants’ vehicle in September 2020 while he was walking on the east sidewalk of Brand Boulevard near the Maple Street intersection in Glendale, California. (Compl., ¶¶13, 17.) Defendant Alejandro Garcia was driving a 2018 Dodge Charger northbound on Brand Boulevard. (Compl., ¶15.) Garcia was driving side by side on Brand Boulevard at a high rate of speed. (Compl., ¶16.) While attempting to change lanes, Akop Daniyelyan’s vehicle collided with Garcia’s. (Compl., ¶17.) Their vehicles collided with a third parked vehicle and then slid onto the sidewalk, striking Decedent. (Compl., ¶17.) Decedent died of his injuries. (Compl., ¶21.) The Complaint also alleges Akop Daniyelyan was intoxicated and driving on a suspended license at the time of the incident. (Compl., ¶34.) The vehicle owner, Ovsep Daniyelyan, known or should have known that Akop Daniyelyan was incompetent or unfit to drive his vehicle. (Compl., ¶69.)

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 his intoxicated driving, his other misconduct leading to the accident, and his 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 Akop Daniyelyan engaged in conduct rising to the level of despicable and willful conduct. Plaintiffs’ complaint states that Akop Daniyelyan was driving intoxicated with a suspended license when he made an unsafe lane change, colliding with Garcia. The Complaint lacks facts describing other misconduct leading up to the accident that would sustain a demand for punitive damages. The suspended license (under Vehicle Code Section 14601.1) alone does not demonstrate previous conduct involving intoxicated or dangerous driving that would support an award of punitive damages.

Punitive damages are also inappropriate as to Ovsep Daniyelyan because merely allowing Akop Daniyelyan to operate his vehicle knowing he was incompetent or unfit to drive does not demonstrate conduct that is vile, base, contemptible, or loathsome as to be deemed despicable. The Complaint lacks facts describing other misconduct leading up to the accident that would sustain a demand for punitive damages, as well as particularized facts that Daniyelyan was aware of any specific facts that rendered Akop Daniyelyan incompetent or unfit to drive.