Judge Lynne M. Hobbs, Case Number: 23STCV29175, Date: 2024-02-29 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV29175, Date: 2024-02-29 Tentative Ruling

Case Number: 23STCV29175 Hearing Date: February 29, 2024 Dept: 30

PHILIP JOSLIN, et al. vs WILLIAM HEROLD

TENTATIVE

Defendant’s motion to strike is GRANTED without leave to amend. Moving party is ordered to give notice.

Request for Judicial Notice

Defendant requests judicial notice of the complaint in this matter. The request is GRANTED.

Evidentiary Objections

Plaintiffs object to Exhibit A of Defendant’s declaration showing Defendant’s efforts at meeting and conferring. The objection is OVERRULED.

Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

Discussion

A. Meet and Confer

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).)

The motion to strike is accompanied by the declaration of John Nestler, which satisfies the meet and confer requirement. (Code Civ. Proc. § 435.5.)

B. Timeliness of Motion to Strike

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. (CCP § 435(b)(1).)

Plaintiffs argue that the motion to strike is untimely. However, there is no proof of service filed in order for the Court to determine whether it is untimely. Nevertheless, an untimely motion to strike may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 Call.App.4th 742, 750; CCP § 436(a).) As such, even if it is untimely, the Court will exercise its discretion and address the motion to strike on its merits.

C. CRC, rule 3.1322

Plaintiff argues in opposition that Defendant fails to quote in full those portions of the claim for punitive damages in the pleadings sought to be stricken.

California Rules of Court, rule 3.1322 states: “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322.)

As shown below, Defendant has not failed to quote in full the portions he seeks to strike.

D. Merits

Defendant moves to strike the following portions of Plaintiffs’ complaint:

1. Page 2, Paragraph 11, Lines 22 to 23, "Under The Influence (despicable conduct)";

2. Page 2, Paragraph 12, Lines 26 to 27, "Under The Influence (despicable conduct)";

3. Page 4, Paragraph 6, Line 18 of the prayer for relief the words "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.)

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.) Plaintiffs allege that that Defendant negligently operated a certain automobile, under the influence, and, as a result collided with Plaintiff’s vehicle. The Court finds insufficient facts have been alleged to pray for punitive damages. In essence, Plaintiff is seeking punitive damages for the failure to properly operate an automobile. The causing of negligent harm through operating an automobile does not suffice as a prima facie case for punitive damages.

Plaintiffs also allege that Defendant was intoxicated. 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 driving under the influence are insufficient to support the imposition of punitive damages. 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, previous convictions for driving under the influence of alcohol, or driving while simultaneously drinking alcohol. The fact that Defendant operated a vehicle when he was under the influence, without specific facts of aggravating circumstances does not warrant punitive damages.

Accordingly, Defendant’s Motion to strike is GRANTED.

Leave to Amend

The burden is on Plaintiffs to show in what manner they 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.) Other than stating amendments are liberally granted and citing to caselaw, Plaintiffs have not requested leave to amend nor have they shown how the complaint can be amended to cure the defect. As such, the Court cannot find there is a possibility of properly pleading punitive damages, and will not allow leave to amend.