Judge: Martha K. Gooding, Case: 2022-01255328, Date: 2022-09-12 Tentative Ruling

Motion to Strike Portions of Complaint

Defendant Ernest Franklin Freeman’s motion to strike portions of the complaint is DENIED.

As an initial matter, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (CCP § 437).  Accordingly, the facts and exhibits contained in the Opposition are disregarded to the extent that they go beyond the four corners of the Complaint.  

“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 plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citations.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) “The grounds for a motion to strike shall 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(a).)

To support exemplary damages, the complaint must allege facts of defendant’s oppression, fraud, or malice, as required by Civil Code section 3294. (Civil Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

“Malice” is defined as 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. (Civil Code § 3294(c)(1).)

“Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code § 3294(c)(2).)

To establish, “willful and conscious disregard,” plaintiff must establish that defendant: (1) was aware of the probable dangerous consequences of his or her conduct; and (2) willfully and deliberately failed to avoid those consequences. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“[T]he term ‘malice’ as used in Civil Code section 3294 has been interpreted as including a conscious disregard of the probability that the actor’s conduct will result in injury to others. [Citations.] “ ‘[C]riminal indifference towards the obligations owed to others’ might be ‘malice’ within the meaning of Civil Code section 3294. [Citation.]” (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88.)

Citing to an article on punitive damages in vehicle accident cases, the Court of Appeal in Dawes stated:

‘[A]llegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise . . . .’ [Citation.)

(Dawes, supra, 111 Cal.App.3d at p. 90.)

Lackner v. North (2006) 135 Cal.App.4th 1188, holds that based on the language included in the 1980 amendment of Civil Code section 3294, a plaintiff seeking punitive damages must plead and prove “despicable conduct,” on the part of the defendant. Lackner did not change the definition of malice espoused in Taylor, but added said definition to the statute. The Court of Appeal in Lackner explained:

The definition of malice has not always included the requirement of willful and despicable conduct. Prior to 1980, section 3294 did not define malice. It was construed to mean malice in fact, which could be proven directly or by implication [citations] and could be established by conduct that was done only with a “conscious disregard of the safety of others . . . .” [Citation.] . . . .

[¶.]

In 1980, the Legislature amended section 3294 by adding the definition of malice stated in Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr.693, 598 P.2d 854 (Stats.1980, ch. 1242, § 1, pp. 4217-4218; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713, 34 Cal.Rptr.2d 898, 882 P.2d 894.) That definition was amended in 1987. As amended, malice, based upon a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is “despicable” and “willful.” [Citation.] The statute’s reference to “despicable conduct” represents “a new substantive limitation on punitive damage awards.” [Citation.]

(Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211.)

The Court of Appeal in Lackner also noted, “While the court in Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, held that punitive damages may be assessed where the defendant was driving under the influence of alcohol at the time of the collision, despicable conduct was not a requirement when Taylor was decided. Moreover, the circumstances alleged there were far worse than those shown here.” (Lackner, supra, 135 Cal.App.4th at p. 1212.) Thus, Lackner clarifies that when alleging that a defendant acted with a conscious disregard of the plaintiff’s rights as a basis for a claim for punitive damages, a plaintiff must also allege facts showing that defendant’s conduct was “despicable” and “willful.”

“The adjective ‘despicable’ connotes conduct that is ‘ “. . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ [Citations.] ‘ “. . . . Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages . . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.” ’ [Citation.]” (Lackner, supra, 135 Cal.App.4th at p. 1210.)

Here, the facts giving rise to punitive damages are alleged in the Exemplary Damages Attachment at Para. EX-2. There, the Complaint alleges:

Defendant admitted the following to the police:

- Defendant had been driving “like an idiot,” racing another vehicle, and had been unable to make the curve of the right turn lane at Portola Pkwy.

- Defendant had a warning device in his vehicle which alerted him to the fact that he was exceeding 90 m.p.h., and had heard it sound at least twice prior to the collision.

- Defendant drank at lot of alcohol prior to driving.

- Defendant is an alcoholic.

The police found that that defendant was intoxicated. Defendant was criminally charged with driving with a blood alcohol content of .08% or more, engaging in prohibited speed contests, and additional charges.

Defendant conduct was despicable and was done with a willful and knowing disregard of the rights or safety of others. Defendant knew of the probable dangerous consequences of his conduct and deliberately failed to avoid those consequences.

The allegations that Defendant’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of others, and that Defendant knew of the probable dangerous consequences of his conduct and deliberately failed to avoid those consequences are conclusory.

However, the specific facts alleged – that Plaintiff was racing another vehicle, knew he was driving unsafely (i.e., “like an idiot”), ignored the warning device in his car that twice alerted him that he was exceeding 90 m.p.h., and had consumed alcohol prior to racing – are sufficient to support an allegation of punitive damages on the ground that Defendant willfully disregarded the rights and safety of others and knew the probable dangerous consequences of his conduct.

Accordingly, the Motion to Strike is DENIED.  Defendant shall file and serve his answer within 15 days.

Plaintiff is ordered to give notice.