Judge Jill Feeney, Case 22STCV31702 2023-04-06 Tentative Ruling

This is an action for negligence and motor vehicle negligence arising from a vehicle collision which took place in May 2021. Plaintiff David Rivero filed his Complaint against the Estate of Michael Christopher Donely, The Beasley Group, LLC, and Roy Beasley on December 30, 2022.

Defendant moves to strike the demands for exemplary and punitive damages against Defendants in paragraphs 76-86 and the prayer for relief in the SAC. Defendant argues that Plaintiff cannot recover punitive damages against Donely because he is deceased. Defendant also argues that punitive damages are not available for hit and run cases.

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).)

“A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” (State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 423.) A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1176.)

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.)

Defendants seek to strike the demands for punitive damages in Plaintiff’s SAC on the grounds that (1) punitive damages are not available against the estate of the deceased Donely and (2) the punitive damages are not available in hit and run cases and the SAC does not allege harm as a result of the alleged flight.

Code Civ. Proc., section 377.42 provides that, “In an action or proceeding against a decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, on a cause of action against the decedent, all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages.”

Here, the SAC names the Estate of Michael Christopher Donely, Deceased, as a defendant in this action. The parties do not dispute that Donely is deceased. Because Donely is deceased, punitive damages are not available against him or his personal representative or successor in interest.

The conduct giving rise to punitive damages must be a proximate cause of the harm inflicted upon a plaintiff. See CACI Instruction No. 3940 (“The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.”) Brooks v. E.J. Willig Truck Transp. Co. is instructive. In Brooks, the court held that a hit and run cannot give rise to damages unless the fact that the defendant fled the scene was “a proximate cause of further injury or death” beyond the accident itself. (1953) Brooks v. E.J. Willig Truck Transp. Co (1953) 40 Cal.2d 669, 679.) In Brooks, the Supreme Court found that a hit and run instruction to the jury was warranted because there was no evidence in the record compelling a finding that the decedent died before the defendant drove away from the scene. (Id. at 680.) Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run. It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional injury above and beyond the damages caused by the collision that precedes fleeing the scene. (Ibid.)

Here, the SAC states that on May 13, 2021, Plaintiff’s vehicle collided with Defendant’s freightliner after Defendant Donely made an unsafe lane change. (SAC ¶11.) After the collision, Plaintiff suffered severe injuries and was transported to Kaiser Permanente for treatment. (SAC ¶26.) Donely made no effort to stop and fled the scene, continuing to travel on the westbound I-91 freeway. (SAC ¶14.) Donely contacted the Beasley Defendants, who instructed and encouraged Donely not to return to the scene of the collision. (SAC ¶¶15-17.) Donely continued to complete his deliveries for the Beasley Defendants. (SAC ¶21.)

Plaintiff alleges no facts as to how Donely fleeing the scene caused more damages or harm given that others immediately rendered assistance to Plaintiff. Plaintiff argues in opposition that the Beasley Defendants engaged in conduct that rose to the level of malice required for punitive damages. But their alleged conduct occurred after the accident. A hit and run constitutes a separate tort only if the act of fleeing causes a plaintiff additional injury above and beyond the damages caused by the collision that preceded the flight. Here, the SAC states that Donely was injured after the collision and received treatment. The SAC does not allege that Plaintiff was further injured as a result of Donely fleeing the scene of the collision.