Judge Kerry Bensinger, Case Number: 22STCV30285, Date: 2023-09-13 Tentative Ruling

On September 16, 2022, Plaintiffs, Brett Blauvelt and Ryon Stewart, filed a form complaint against Defendant, Alberto Reyes Cruz, for injuries arising from a motor vehicle accident. The Complaint asserts cause of action for (1) Motor Vehicle and (2) General Negligence. Gross negligence is alleged as part of the general negligence claim. Plaintiffs seek punitive damages.

According to the Complaint, Defendant was operating a vehicle while legally intoxicated when he failed to stop at a red light and collided with Plaintiffs’ police vehicle. Plaintiffs were on duty at the time of the incident.

On April 10, 2023, default was entered against Defendant. On May 7, 2023, Defendant filed a motion to set aside the default. The motion was first heard on July 31, 2023. The Court issued a tentative ruling expressing an inclination to set aside the default. However, as Defendant had not attached the proposed pleading to be filed, the matter was continued to allow Defendant to cure that defect.

On August 15, 2023, Defendant filed an amended motion to set aside the default which included a proposed demurrer to the gross negligence allegations and a motion to strike punitive damages. The Court granted the motion on September 13, 2023, and deemed the demurrer and motion to strike as filed on that same day. However, pursuant to Plaintiffs’ oral argument, the Court ordered Defendant to separately file the demurrer and motion to strike. After encountering technical difficulties, Defendant filed the demurrer and motion to strike on September 15, 2023.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council forms are not immune to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defense counsel has complied with the meet and confer requirement.¿ (Feng Decl., ¶ 3.)

Under the heading of “Gross Negligence” and in connection with the Second Cause of Action for General Negligence, the Complaint alleges as follows:

“Plaintiffs are informed, believe and allege that defendant Alberto Reyes Cruz, in a conscious disregard of the safety of others, after drinking alcohol to excess, such that his blood alcohol content was above the legal limit of 0.08, and being aware of the probable dangerous consequences of his conduct of driving under the influence, and the risk he posed to other drivers, pedestrians and the general good of the community, and knowing that driving under the influence was unlawful under Vehicle Code§ 23152(a), did drive a vehicle on Balboa Blvd. failed to stop at and ran a red light at Victory Blvd. in violation of Vehicle Code § 21453, and collided with an on-duty police vehicle traveling westbound on Victory Blvd. Plaintiffs are informed, believe and allege that defendant Alberto Reyes Cruz knowing that it was not safe for him to drive, that it was illegal for him to drive under the influence and that he reasonably and foreseeable would either injury or kill a pedestrian or another drivers, wilfully and deliberately failed to avoid those consequences by driving a vehicle while intoxicated.” (Complaint, p. 5.)

Defendant demurs to the gross negligence allegations on the basis that gross negligence is not an independent cause of action, but rather is a species of negligence. “Gross negligence is a subspecies of negligence; it is not a separate tort. (Joshi v. Fitness Int'l, LLC (2022) 80 Cal.App.5th 814, 825.) The demurrer fails for two interrelated reasons. First, the gross negligence allegations appear as a part of Plaintiffs’ Second Cause of Action for General Negligence. Although Defendant correctly states the general rule that gross negligence is not an independent cause of action, there is no authority which stands for the proposition that gross negligence cannot be alleged as part of a general negligence claim. As courts have observed, gross negligence is merely a degree of negligence. (See, e.g., Swigart v. Bruno (2017) 13 Ca.App.5th 529, 541.) Defendant effectively argues that the Court should construe the gross negligence allegations separate and apart from its context. The Court declines to do so. Read in context, the gross negligence allegations support the Second Cause of Action for General Negligence. And because the Court does not read the gross negligence allegations in isolation, the demurrer fails for the additional reason in that it fails to dispose of the entire cause of action of General Negligence. (Code Civ. Proc., § 430.50.)

In sum, the Complaint sufficiently states a cause of action for General Negligence and a claim for gross negligence.[2] Accordingly, the demurrer is OVERRULED.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (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, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Under Civil Code section 3294, subdivision (b), “[a]n employer shall not be eligible for damages pursuant to subdivision (a), based upon acts of an employee of the employer unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.”

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].)

Plaintiffs’ claim for punitive damages is based upon Defendant allegedly driving while intoxicated. Specifically, the Complaint alleges:

Defendant Alberto Reyes Cruz, in a conscious disregard of the safety of others, after drinking alcohol to excess, such that his blood alcohol content was above the legal limit of 0.08, and being aware of the probable dangerous consequences of his conduct of driving under the influence, and the risk he posed to other drivers, pedestrians and the general good of the community, and knowing that driving under the influence was unlawful under Vehicle Code§ 23152(a), did drive his vehicle on Balboa Blvd. southbound, failed to stop at and ran a red light at Victory Blvd., in violation of Vehicle Code § 21453, and collided with an on-duty police vehicle traveling Westbound on Victory Blvd. Plaintiffs are informed, believe and allege that defendant Alberto Reyes Cruz, knowing that it was not safe for him to drive, that it was illegal for him to drive under the influence and that he reasonably and foreseeable would either injury or kill a pedestrian or other drivers, wilfully and deliberately failed to avoid those consequences by driving a vehicle while intoxicated. Such conduct by defendant was with want of even scant care and with an extreme departure from the ordinary standard of conduct, including violating Vehicle Code § 23152, in the operation of a motor vehicle such that his conduct constituted gross negligence, and he acted with malice within the meaning of Civil Code § 3294, resulting in significant injuries to plaintiffs, who were in a marked police vehicle and on duty police officers. (Complaint, p. 6.)

Defendant argues punitive damages should be stricken because merely alleging “intoxication” and/or “reckless” conduct is insufficient to support a claim for punitive damages.

The leading case is Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) There, the California Supreme Court held that punitive damages may be imposed for driving while intoxicated under certain circumstances, but has not held that punitive damages are always appropriate in cases involving driving while intoxicated. (Taylor, 24 Cal.3d at p. 892.) In Taylor, the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident. (Id. at p. 893.) Further, the defendant accepted employment which required him both to call on various commercial establishments where alcoholic beverages were sold, and to deliver or transport such beverages in his car. (Ibid.) Finally, the complaint alleged that at the time of the accident, defendant was transporting alcoholic beverages and simultaneously driving while consuming an alcoholic beverage. (Ibid.) The California Supreme Court found these circumstances to be circumstances of aggravation or outrage and there was “no valid reason whatever for immunizing the driver himself from the exposure to punitive damages given the demonstrable and almost inevitable risk visited upon the innocent public by his voluntary conduct as alleged in the complaint.” (Id. at p. 898.)

Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, clarified that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant’s decision to drive while intoxicated made the risk of harm to others probable. (Dawes, supra, 111 Cal.App.3d at p. 89.) In Dawes, the circumstances constituted more than the “ordinary driving while intoxicated,” where there was a probable risk of injury to others due to the defendant’s driving while intoxicated, at a high rate of speed, zigzagging through traffic, in the middle of the afternoon, and in locations of heavy pedestrian and vehicle traffic. (Id. at pp. 88-89.)

Here, Plaintiffs have not set forth insufficient allegations as to the probable rather than possible risk of harm based on the circumstances of the accident or conduct by Defendant. Unlike Taylor or Dawes, the Complaint does not allege that Defendant had a history of drunken driving, prior convictions for drunken driving, or of unsafe driving leading up to the accident. Absent any like allegations, the Court cannot conclude that Plaintiffs’ injuries as a result of Defendant’s intoxication while driving were more than merely possible.

The Complaint is deficient. As such, the motion to strike punitive damages is GRANTED. Leave to amend is DENIED.

The motion to strike punitive damages is granted. Leave to amend is denied. If Plaintiffs later discovers facts supporting punitive damages, Plaintiffs may seek leave to amend.

Plaintiffs are ordered to file a First Amended Complaint consistent with this order within 10 days of this order.

Defendant is ordered to serve and file its responsive pleading within 30 days of service of the First Amended Complaint.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Plaintiffs argue Defendant failed to provide sufficient notice of the demurrer and motion to strike. Plaintiffs base this argument upon Defendant’s service and filing of the demurrer and motion to strike on September 15, 2023, which is only 13 court days before the hearing. The argument lacks merit. Defendant included the proposed demurrer and motion to strike in his amended motion to set aside default on August 15, 2023. It is doubtful Plaintiffs were not provided with sufficient notice More importantly, Plaintiffs submitted oppositions which engage with the merits of the demurrer and motion to strike. Given these facts, Plaintiffs cannot claim to have been prejudiced by a purported lack of notice. As such, the Court considers Defendant’s demurrer and motion to strike herein.

[2] Defendant also argues the demurrer to the punitive damages attachment to the form Complaint should be sustained because malice, fraud, and oppression are not a cause of action. Defendant again misreads the form Complaint. Malice, fraud, and oppression are not alleged as a cause of action but in support of punitive damages. (Complaint, p. 6.) Moreover, Plaintiffs set forth the punitive damages allegations upon attachment that has been approved for use by the Judicial Council of California. A motion to strike is a better vehicle to challenge the sufficiency of the punitive damage allegations. Defendant has filed a motion to strike punitive damages which the Court discusses below.

[3] The notice of the motion to strike indicates the gross negligence allegations are also the subject of the motion. However, as the motion to strike focuses solely on the punitive damages allegations, the Court addresses only the punitive damages arguments.