Judge Lee S. Arian, Case Number: 22STCV16215, Date: 2023-12-01 Tentative Ruling

MOVING PARTY: Defendants Aviv Haim Vered, David Vered, and Ester Vered (“Defendants”)

This action arises from a motor vehicle accident that occurred on May 27, 2021, in which Plaintiff alleges that Defendants consumed alcohol and drugs prior to the collision, and thereafter hid from law enforcement. On May 16, 2022, Plaintiff Richard Jack Walker Thompson (“Plaintiff”) filed a complaint against Defendants Aviv Haim Vered, David Vered, and Ester Vered (“Defendants”), alleging causes of action for: (1) Motor Vehicle Negligence, (2) General Negligence, and (3) Negligence Per Se and Punitive Damages.

On October 6, 2023, Defendants filed their motion to strike punitive damages from Plaintiff’s complaint. Plaintiff filed his opposition on November 16, 2023.

On December 1, 2023, after hearing and oral argument, the Court continued the hearing on Defendants’ motion to strike to December 19, 2023. (12/01/23 Minute Order.) The Court continued the hearing for the parties to submit supplemental briefing. (Id. at p.4.) In its December 1, 2023, Minute Order, the Court stated that it “would like to hear argument from the parties in relation to Plaintiff’s fraud allegations.” (Id. at p.4.) Defendants were ordered to submit their supplemental reply brief by December 12, 2023. (Id. at p.1.) Plaintiff was ordered to submit his sur-reply as to fraud only by December 15, 2023. (Id.)

On December 11, 2023, Defendants filed their reply brief.[1] On December 15, 2023, Plaintiff filed his sur-reply.

“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., § 435, subd. (b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

“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.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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.” (Civ. Code, § 3294, subd. (c)(1).) “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.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) California Civil Code, Section 3294(c)(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Fraud under California Civil Code, Section 3294(c)(3) “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.” Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

DEFENDANTS, AVIV HAIM VERED, DAVID VERED, ESTER VERED, AND DOES 1 TO 10, CONSPIRED TO HIDE, MISLEAD AND DECEIVE LAW ENFORCEMENT AND PLAINTIFF IMMEDIATELY AFTER THE ACCIDENT. EACH OF SAID DEFENDANTS HAD CONSUMED ALCOHOL AND DRUGS WITH THE FULL UNDERSTANDING THAT SAID CONSUMPTION COULD LEAD TO INJURY AND/OR DEATH.

AFTER THE ACCIDENT SAID DEFENDANTS, FLED THE SCENE IN ORDER TO PREVENT INVESTIGATING LAW ENFORCEMENT OFFICERS FROM DOING DRUG AND ALCOHOL INVESTIGATION AND TESTING. THE INVESTIGATING OFFICERS WERE UNABLE TO PROVE THAT DEFENDANTS, AND EACH OF THEM, WEER UNDER THE INFLUENCE OF ALCOHOL AND DRUGS AT THE TIME AND PLACE OF THE ACCIDENT. EACH OF THE SAID DEFENDANTS KNOWINGLY SPOILATED EVIDENCE, INCLUDING DESTROYING AND HIDING ALCOHOL CONTAINERS IMMEDIATELY AFTER THE ACCIDENT OCCURRED.

Defendants contend that Plaintiff failed to make sufficient allegations to support his claim for punitive damages. (Motion, 5:26-27.) Defendants contend that punitive damages are only available in a case in which the conduct is severe or shocking. (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10.) Defendants assert that Plaintiff’s complaint merely alleges Defendants were under the influence of drugs and alcohol. (Motion, 7:4-5.) Defendants cite Dawes v. Superior Court, in which the court held that the plaintiff alleged specific facts which were sufficient to support the award of punitive damages if proven at trial. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82,88-89.) Defendants argue Plaintiff’s complaint lacks specific facts and only pleads that Defendants were potentially intoxicated and could not be tested because they fled the scene. (Motion, 8:2-4.)

Plaintiff asserts that his allegations are sufficient as he alleges Defendants consumed alcohol and drugs with the understanding that doing such could lead to injury or death, and this would satisfy the definition of malice under Code of Civil Procedure section 3294(c). (Opposition, 5:5-6.) Further, Plaintiff alleges that Defendants fled the scene to prevent an investigation by law enforcement, and that Defendants intentionally hid evidence, including bottles, after the accident. (Opposition, 5:7-9.) Plaintiff therefore contends that Defendants committed fraud and their conduct was oppressive.

On reply, Defendants allege that allegations of fleeing the scene, without direct injury to Plaintiff, does not constitute fraud. (Reply, 3:1-2.) Defendants cite People v. Valdez in support of this proposition; however, the Court finds that People v. Valdez is inapposite as it neither addressed punitive damages nor mentioned fraud in any context. (People v. Valdez (2010) 189 Cal.App.4th 82.) Defendants’ citation to Brooks v. E.J. Willing Truck Transp. Co. (1953) 40 Cal.2d 669 is inapposite for the same reason. Neither Plaintiff nor Defendants present any applicable legal authority as to whether fleeing the scene of an accident to prevent a law enforcement investigation constitutes fraud for the purpose of punitive damages. Based on a review of the allegations of the complaint, the Court finds that Plaintiff has not sufficiently alleged fraud to support punitive damages because Plaintiff has not alleged that Defendants fleeing from the scene and/or destroying evidence was for the purpose of depriving a person of property, or legal rights, or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

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.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Defendants filed a second reply brief on December 11, 2023, and a third reply brief on December 12, 2023. Such briefs are essentially identical but for the filing time and different formatting. Thus, the Court will treat the reply filed on December 11, 2023 at 4:39PM, which indicates that it is a corrected reply, as the operative reply brief.