Judge Lynne M. Hobbs, Case Number: 23STCV20528, Date: 2023-12-19 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV20528, Date: 2023-12-19 Tentative Ruling

Case Number: 23STCV20528 Hearing Date: December 19, 2023 Dept: 30

OSHRI TCHERCHI vs DANIEL GOLCHIAN

TENTATIVE

Defendant’s Motion to strike is GRANTED as to the claim for punitive damages with 20 days leave to amend. Moving party to give notice.

Legal Standard

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(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Meet and Confer

Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the issues to be raised in the motion. The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc., § 435.5, subd. (a)(3).)

The motion to strike is not accompanied by a declaration of defense counsel, and thus, does not satisfy the meet and confer requirements. Nevertheless, as this is not a ground to deny the motion, the Court will turn to the merits.

Discussion

Defendant moves to strike allegations relating to punitive damages along with the prayer for punitive damages, arguing that the allegations in the complaint do not support a claim for punitive damages.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section

3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

In Taylor v. Superior Court (1979) 24 Cal.3d 890, 892, the court concluded 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. Taylor fell short, however, of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The Court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under § 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. at p. 892.)

Notably, Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, a subsequent decision, held that driving while intoxicated does not always give rise to a claim for punitive damages. “[W]e do not agree 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. The risk of injury to others from [the defendant’s] conduct under the circumstances alleged was probable.” (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 89.)

Further, Taylor was 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/willful and conscious disregard of the rights or safety of others standard. “[T]he statute's reference to ‘despicable’ conduct seems to represent a new substantive limitation on punitive damage awards.¿Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ (4 Oxford English Dict. (2d ed. 1989) p. 529.)¿As amended to include this word,¿the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (Coll. Hosp., supra, 8 Cal. 4th at 725 [emphasis added].) There has been no subsequent decision holding that drinking and driving, without exacerbating circumstances that make injury probable, gives rise to a claim for punitive damages.

The Court finds that the allegations in the complaint regarding the intoxication of Defendant are insufficient to support the imposition of punitive damages. There are no potential aggravating circumstance alleged. As discussed in Taylor and Dawes, specific factual circumstances must be pled which show that the risk of injury was probable, e.g., weaving through lanes of traffic at 65 miles per hour, a previous conviction for driving under the influence of alcohol, or driving while simultaneously drinking alcohol. The fact that Defendant was under the influence, without more specific facts of aggravating circumstances does not warrant punitive damages.

Therefore, the allegations in the complaint are insufficient to state a prima facie claim for punitive damages for oppression and malice. Thus, the motion is granted.