Judge: Lynne M. Hobbs, Case: 23STCV25537, Date: 2024-03-26 Tentative Ruling

Case Number: 23STCV25537    Hearing Date: March 26, 2024    Dept: 30

EDWARD MORALES NIETO vs LADEJA DESIREE ROBINSON

TENTATIVE

Defendant’s motion to strike punitive damages is GRANTED without 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.)

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Code Civ. Proc., § 3294.) “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. (Id.) “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. (Id.)

A tort involving negligence, together with conduct or omissions that one knows or should know probably will result in harm, can support an award of punitive damages. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286–288 [defendant’s inattention to danger showed a complete lack of concern for the likelihood of personal injuries at defendant’s premises].) In contrast, allegations of negligence, where injuries might occur but are not probable, do not support a claim of punitive damages. (McDonell v Amer. Trust Co. (1955) 130 Cal.App.2d 296, 300; see also Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 12 [evidence of negligence insufficient to show that defendant knew or must have known of the danger].)

Discussion

Meet and Confer

Defendant has satisfied the meet and confer requirements by filing a meet and confer declaration which complies with CCP § 435.5. (Grant Decl. ¶¶ 3-5.)

Merits

Defendant moves to strike Plaintiff’s claim related to punitive damages on the ground that Plaintiff has failed to allege facts sufficient to support a finding of malice under Civil Code § 3294.

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 895-96.) The Taylor 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. “One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.” (Id. at p. 897.)

To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to “establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Id. at p. 896.) If the essential gravamen of the complaint is that “Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby” then this is sufficient to allege punitive damages. (Ibid.) While a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases. (Ibid.)

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, 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. The only potential aggravating circumstance alleged is that Defendant was speeding. 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, a previous conviction for driving under the influence of alcohol, or driving while simultaneously drinking alcohol. The fact that Defendant struck a vehicle while intoxicated, without more specific facts of aggravating circumstances does not warrant punitive damages.

Leave to Amend

The burden is on Plaintiff to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

Plaintiff requests leave to amend and attaches a draft first amended complaint. However, the only difference between the two pleadings is that the first amended complaint alleges Plaintiff had a blood alcohol level greater than 0.08% and she was traveling 50 miles per hour. The proposed first amended complaint does not cure the defects outlined above. Again, there are no aggravating factors. As such, the Court cannot find there is a possibility of properly pleading punitive damages, and will not allow leave to amend.

Accordingly, Defendant’s motion to strike punitive damages is GRANTED without leave to amend.