Judge: John J. Kralik, Case: 22BBCV00853, Date: 2024-05-23 Tentative Ruling

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Case Number: 22BBCV00853    Hearing Date: May 23, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Mario Munoz, minor Adrian Munoz, minor Michael Munoz, and Josue Herrera (“Plaintiffs”) filed this motor vehicle complaint on October 27, 2022 against Defendants Rebecca Nicole Lennox and Brian Lennox (“Defendants”).  The complaint alleges causes of action for: (1) motor vehicle and (2) general negligence. 

Plaintiffs allege that on February 19, 2022, they were stopped on the I-5 Burbank Boulevard offramp at the stoplight heading northbound when Defendants rear-ended Plaintiffs’ vehicle.

On April 24, 2024, Plaintiffs dismissed with prejudice the complaint as to Plaintiffs Adrian Munoz, Michael Munoz, and Josue Herrera only. 

B.     Relevant Background and Motion on Calendar   

            On April 30, 2024, Plaintiffs filed an ex parte application for leave to file the first amended complaint (“FAC”) or, in the alternative, to advance the hearing date. 

            On April 30, 2024, Defendants filed an opposition to the ex parte application. 

            On May 2, 2024, the Court held a hearing on the ex parte application. The Court granted the ex parte application such that the hearing was scheduled for May 23, 2024.  The Court ordered the opposition and reply to be filed and served pursuant to code.

            On May 9, 2024, Defendants filed an opposition brief.  

            The Final Status Conference is set for May 23, 2024.  The Jury Trial is set for June 3, 2024. 

LEGAL STANDARD

CCP § 473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” 

            CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

            1) The effect of the amendment;

            2) Why the amendment is necessary and proper;

            3) When the facts giving rise to the amended allegations were discovered; and

            4) The reasons why the request for amendment was not made earlier.

The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)  If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend.  (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

DISCUSSION

Plaintiffs move for leave to file the proposed First Amended Complaint (“FAC”).  Plaintiffs provide Exhibit 1, which includes the Exemplary Damages Attachment (Form PLD-PI-001(6)).  In the Exemplary Damages Attachment, Plaintiff seeks to add the following language to the complaint:

Defendant Rebecca Nicole Lennox voluntarily consumed alcohol and had a Blood Alcohol Content of .18, an amount that would lead to intoxication, knowing that the combined effects of a high Blood Alcohol Level would sharply impair her ability and mental faculties, including her ability to operate a motor vehicle, but also knowing and intentionally operated the vehicle while intoxicated and under the influence of alcohol. Defendant was aware or should have been aware of the probable dangerous consequences of operating a motor vehicle while under the influence of alcohol. Defendant consumed alcohol knowingly that she would operate a vehicle thereafter. Defendant did so with full knowledge and conscious disregard that doing so posed a danger to others on the road, including Plaintiffs, and that doing so posed a great risk of danger to the rights and safety of others. Despite the risks and the illegality of driving under the influence of alcohol, Defendant still got behind the wheel of her vehicle and operated the vehicle negligently, carelessly, and recklessly.

(Application, Ex. 1.) 

In support of the motion, Plaintiffs provide the declaration of counsel Itamar B. Tehrani.  Counsel Tehrani states that on April 12, 2024, Plaintiffs attended a good faith mediation with Defendants with the expectation that the case would settle; while Plaintiff accepted the mediator’s proposal, Defendants did not.  (Tehrani Decl., ¶7.)  Counsel states that there were outstanding discovery issues, which based on Defendants’ representation of settling the case at the deposition, Plaintiffs waited on pursuing the deficiencies.  (Id., ¶8.)  Counsel states that Plaintiffs had to take Defendants’ deposition and are waiting on outstanding discovery regarding her DUI, but Defendants have refused to provide the additional information in outstanding discovery and have forced Plaintiffs to continue trial as a result.  (Id., ¶9.)  Counsel provides the Police Report for the incident and a copy of Rebecca Lennox’s deposition, where she admits that she had a blood alcohol content level of .18, that her driver’s license was suspended as a result of this loss, and she was combative with the police at the time of the incident and prior to her arrest.  (Id. ¶¶ 4-5, Ex. 2 [Police Report], Ex. 3 [R. Lennox Depo. at pp. 10-11, 38, 48-49].) 

In opposition, Defendants argue that Plaintiffs have not shown by “clear and convincing evidence” that a request for punitive damages is proper.  Defendants argue that merely driving while intoxicated is not sufficient for an award of punitive damages and that there has to be both allegations of severe intoxication and independent despicable conduct. 

Civil Code § 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud.  Section 3294(c) defines the terms in the following manner:

(1)   "Malice" means 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.

(2)   "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3)   "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. 

Taylor v. Superior Court (1979) 24 Cal.3d 890 is instructive with respect to this set of facts.  In Taylor, the Supreme Court fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated, finding 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.”  (Id. at p. 892.)  In the subsequent decision of Dawes v. Superior Court (1980) 111 Cal.App.3d 82, the Supreme Court held that driving while intoxicated does not always give rise to a claim for punitive damages.  Specifically, the Court stated that “the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June.  The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.”  (Id. at p. 89.)  In Peterson v. Superior Court (1982) 31 Cal.3d 147, the proposed complaint at issue in that action alleged “after consuming alcohol, the defendant drove with plaintiff in the vehicle at speeds in excess of 100 miles per hour, and that the plaintiff objected to the high speed and demanded that defendant properly control the vehicle. The parties stopped at a restaurant, and defendant consumed additional alcoholic beverages, then returned to the car and defendant drove at a speed well in excess of 75 miles per hour, losing control of the vehicle and injuring plaintiff. The complaint alleges that defendant drove the vehicle with knowledge that probable serious injury to other persons would result and in conscious disregard of the safety of plaintiff.”  (Peterson, supra, 31 Cal.3d at 162.)  The Peterson court concluded that the allegations of the proposed complaint stated sufficient facts to support an award for punitive damages because the defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby.  (Id. at 163.) 

Based on the rules set forth in both Taylor and Dawes, the Court finds that the allegations in the proposed FAC regarding Defendant Rebecca Lennox’s intoxication are insufficient to support the imposition of punitive damages.  The description of Defendant’s conduct can be applicable to almost any situation wherein a person consumes alcohol and then decides to drive.  The fact that the FAC alleges that Defendant consumed excessive amount of alcohol prior to driving and her BAC at .18 do not necessarily show that she acted maliciously or oppressively.  As discussed in Taylor, Dawes, and Peterson, specific factual circumstances must be alleged which show that the risk of injury was probable, such as weaving through lanes of traffic, a previous conviction for driving under the influence of alcohol, driving while simultaneously drinking alcohol, or consuming more alcohol after already being intoxicated and continuing to drive.  The fact that an accident occurred, and Defendant was found to be intoxicated, without more, has the character of ordinary negligent driving and does not show aggravating circumstances warranting punitive damages.  

Finally, Plaintiffs have not addressed each factor provided in CRC rule 3.1324.  While Plaintiffs’ counsel states that discovery is still ongoing and they are waiting for outstanding discovery responses, Plaintiffs appear to have been aware of the fact that Defendant Rebecca Lennox was intoxicated as this was recorded in the Police Report.  (See Police Report at p.8.)  The Police Report appears to have been completed on March 4, 2022.  Further, Rebecca Lennox was deposed on August 4, 2023 where she testified regarding the DIU and her license suspension at that time.  Based on the evidence submitted, Plaintiffs do not have sufficient evidence to submit to the issue of punitive damages to the jury.

While Plaintiffs’ counsel states that they anticipated settlement at mediation on April 12, 2024, Plaintiffs have not explained why the amendment was not made earlier as a complete timeline of events is not provided regarding when they obtained the Police Report, when they agreed to mediate the case with Defendants, etc. such that they delayed in filing this motion sooner. 

The application for leave to file the proposed FAC is denied. 

CONCLUSION AND ORDER

Plaintiffs’ application for leave to file the proposed First Amended Complaint to add allegations for punitive damages is denied. 

Plaintiffs shall provide notice of this order.

DATED:  May 23, 2024                                                         ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court