TENTATIVE RULING

Defendant Alec David Bystritsky’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED, with thirty (30) days leave to amend.

Plaintiff Justin Richard Vogel may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Alec David Bystritsky to give notice.

REASONING

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant Alec David Bystritsky (“Defendant”) moves to strike certain allegations from Plaintiff Justin Richard Vogel (“Plaintiff”)’s complaint seeking punitive damages against Defendant.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Taylor v. Superior Court (1979) 24 Cal.3d 890 (Taylor) is instructive here. In Taylor, the Supreme Court found that “the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under [Civil Code] 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 (Dawes), 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,” such that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (Id. at p. 89.) Notably, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code section 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice, or willful and conscious disregard of the rights or safety of others, standard.

Based on the rules set forth in both Taylor, supra, 24 Cal.3d 890 and Dawes, supra, 111 Cal.App.3d 82, the Court finds that the allegations contained within Plaintiff’s complaint regarding Defendant’s intoxication are insufficient to support the imposition of punitive damages. (See Compl. ¶¶ 14, 15; Compl., p. 6.) As discussed in Taylor and Dawes, specific factual circumstances constituting aggravating factors must be alleged to 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, or driving while simultaneously drinking alcohol. 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. While Plaintiff includes other facts about the incident and Defendant’s conduct in his opposition, those facts are not included within the complaint.

Accordingly, Defendant Alec David Bystritsky’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED, with thirty (30) days leave to amend. Plaintiff Justin Richard Vogel may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)