Judge Kerry Bensinger, Case Number: 22STCV40614, Date: 2023-08-21 Tentative Ruling

On February 28, 2022, Plaintiffs, Cathy Feck, individually, as surviving spouse of Charles Feck, and as personal representative of the Estate of Charles Feck, and Dolores Adams, filed this wrongful death action against Defendants, Gregory Owen and Susan Owen, arising out of a January 14, 2022 motor vehicle accident.

According to the Complaint, Cathy Feck was operating a Jeep Grand Cherokee on a clear day on January 14, 2022. Dolores Adams was the front seat passenger and Charles Feck was in the rear right passenger seat. Ms. Feck came to a lawful stop at a traffic signal at the intersection of Northbound State Route 95 and Acoma Boulevard (the “Intersection”). On the same day, Defendant Gregory Owen was operating a Newmar Dutch Star Motor Coach and was also traveling on Northbound State Route 95. Mr. Owen approached the Intersection at a speed of approximately 53 miles per hour and failed to stop the Motor Coach before colliding with the rear end of Plaintiffs’ vehicle. The force of the collision propelled Plaintiffs’ vehicle into the Intersection where it was side swiped by another vehicle. Ms. Feck and Ms. Adams were transported via ambulance and Mr. Feck was transported via helicopter to receive medical treatment. Mr. Feck died the next day as a result of injuries sustained in the motor vehicle collision. (Complaint, ¶¶ 11-16, 21-24, 27, 30-32.)

On March 20, 2023, Defendants filed a motion to strike punitive damages from the Complaint. On June 13, 2023, the Court granted the motion with leave to amend.

On July 3, 2023, Plaintiffs filed the First Amended Complaint (“FAC”). The FAC seeks punitive damages.

On July 17, 2023, Defendants filed a motion to strike the punitive damages allegations from the FAC. Plaintiffs oppose and Defendants reply.

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.)

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)

Defense counsel has satisfied this the meet and confer requirement. (Declaration of Greg Ryan, ¶ 4.)

Defendants request judicial notice of the reversal issued in the criminal case, In re the Matter of: State of Arizona v. Gregory James Owen, case no. CR-2023-00497, in the Superior Court of the State of Arizona, County of Mohave. The unopposed request is granted. (Evid. Code, § 452, subd. (d)(2).)[1]

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 Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 (College Hospital).)¿

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, 1041-42.) “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. [Citation.] 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. [Citation.]” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) In Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643, the Court of Appeal noted that the plaintiffs’ factual presentation relating to their claim for punitive damages was “insufficient to meet the specific pleading requirement.” (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”].)

Defendants seek to strike the request for punitive damages from the FAC. The request appears on Paragraph 78, Paragraph 79, Paragraph 84, and Paragraph G of the Prayer for Relief. As the Court has previously granted Defendants’ motion to strike the punitive damages request from the original complaint, the Court begins by reviewing the new allegations in the FAC.

49. Upon information and belief, at the time of the subject collision and at the time that Defendant Susan Owen permitted Defendant Gregory Owen to operate the Owen Motor Home, Defendant Susan Owen was aware that Defendant Gregory Owen “takes 20 pills a day at regimented times” or else Mr. Owen “will die”.

50. Upon information and belief, at the time of the subject collision and at the time Defendant Susan Owen permitted Defendant Gregory Owen to operate the Owen Motor Home, Mr. Owen’s daily medications included medications for sleep (zolpidem); cardiac arrhythmias (amiodarone); blood thinning (Eliquis); hypercholesterolemia (atorvastatin); bipolar disorder (divalproex, Lamictal); nausea and vomiting (Zofran); gastrointestinal symptoms (Protonix); blood pressure control (amLOPDline, telmisartan) ; and, diabetes mellitus (emphaglifliozin-metformin).

51. Upon information and belief, at the time of the subject collision and at the time that Defendant Susan Owen permitted Defendant Gregory Owen to operate the Owen Motor Home, Defendant Susan Owen was aware that Mr. Owen has “short term memory loss from a stroke;” and that “sometimes she will show him things and he has no idea what she is talking about;” and, finally that “[Mr. Owen] tells a lot of stories from his childhood when he was a young lawyer, but he doesn’t remember a whole heck of a lot”.

52. Upon information and belief, at the time of the subject collision and at the time that Defendant Susan Owen permitted Defendant Gregory Owen to operate the Owen Motor Home, Defendant Susan Owen knew or should have known that Mr. Owen was being treated for the following medical conditions: memory impairment and progressive cognitive decline; various musculoskeletal problems including neck and shoulder; history of depression; bipolar disorder; hemorrhagic stroke; cerebral infarction due to middle cerebral artery embolism; coagulopathy – thromboembolic stroke; anemia; thalassemia minor; aortic valve stenosis; atherosclerosis of the aorta; left sided atrial flutter; and paroxysmal atrial fibrillation.

The issue is whether the allegations of Defendant Gregory Owen’s operation of a motor vehicle amidst declining health, and Defendant Susan Owen’s purported knowledge of the same, rise to the level of malice within the meaning of the punitive damages statute. The Court finds the allegations do not rise to the level of despicable conduct. Plaintiffs argue driving a motor vehicle in Defendant Gregory Owen’s state is akin to driving while intoxicated. However, missing from the FAC are any allegations showing Defendant Gregory Owen’s declining health rendered him unable to operate a vehicle. That may be the inference to be drawn, however, the allegations only reference poor health in the general sense. This lacks the specificity required under Civil Code section 3294. Nor are the allegations regarding Defendant Gregory Owen’s medication regimen specifically connected to the operation of the motor coach on the day of the incident. There is no allegation in the FAC that any of the medications listed—zolpidem, amiodarone, Eliquis, atorvastatin, divalproex, Lamictal, Zofran, Protonix, amLOPDline, telmisartan, or emphaglifliozin-metformin—impair one’s ability to operate a motor vehicle or whether Defendant Gregory Owen had already taken the medication at the time of the incident. Having found the allegations regarding Defendant Gregory Owen’s health and medication treatment to be insufficient, the Court also finds the allegations related to Defendant Susan Owen to be insufficient to sustain the punitive damages request. The FAC is deficient.

As Plaintiffs have not pled sufficient allegations to justify the request for punitive damages after given leave to amend once before, the Court DENIES leave to amend.¿ Plaintiffs may seek to amend the complaint at later time upon discovery of new information.

Defendants are ordered to file and serve their Answer to the FAC within 10 days of this order.

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]Defendants rely on the reversal of Defendant Gregory Owen’s criminal conviction in the Arizona state case to argue punitive damages in this case are improper when there is no finding of criminal negligence. The criminal case does not affect the outcome of the is motion.