Judge: Michael D. Washington, Case: 37-2024-00005219-CU-PA-NC, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 06, 2024

06/07/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  PI/PD/WD - Auto Demurrer / Motion to Strike 37-2024-00005219-CU-PA-NC LOPEZ SERRANO VS KIESEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 03/11/2024

The Motion to Strike Punitive Damages brought by defendant Jon Kiesel (Defendant) is GRANTED without leave to amend. However, should additional facts be uncovered in discovery that could support allegations that could, in turn, support a claim for punitive damages, the denial of leave to amend at this juncture is without prejudice to the bringing of a formal Motion for Leave to Amend under Code of Civil Procedure § 473(a)(1) and California Rules of Court, rule 3.1324 to add such claims to the operative pleading.

Defendant's time to answer or otherwise plead shall be analogous to those set forth in California Rules of Court, rule 3.1320(j).

Factual Background The facts alleged in this case are quite grievous. It is alleged that Defendant, while driving a black Lexus RX 350 SUV at 9:20 p.m. in Escondido, California on June 25, 2022, struck a 14-year-old who was pronounced dead within about two minutes of the accident. Defendant allegedly fled the scene and cleaned off his car, but was ultimately found by authorities and pled guilty to felony hit-and-run.

Plaintiffs Jose Serrano and Araceli Sanchez are the survivors-in-interest of the minor (hereinafter, Plaintiffs). They allege, on information and belief, that Defendant: 'Drove Defendant's vehicle while Defendant was impaired.' (ROA 1, ¶ 32d (emphasis added).) The words 'drunk' or 'intoxicated' do not appear in the operative pleading, and the only other place that the word 'impaired' appears is in reference to punitive damages: 80. Plaintiffs are entitled to punitive damages because Defendant Jon Edwin Kiesel drove Defendants' Vehicle while impaired and failed to stop to render aid to an obviously injured minor. Instead, Defendant Jon Edwin Kiesel fled the scene of the collision, never contacted authorities to report the Collision, and attempted to hide the commission of this hit-and-run felony by removing and destroying evidence, including but not limited to wiping off Decedent's blood, hair, skin and clothing from Defendants' Vehicle.

(ROA 1, ¶ 80 (bold added).) Merits of Motion Defendant now moves to strike punitive damages from the operative pleading because, according to Defendant, his post-accident conduct cannot support a claim for punitive damages. In other words, since the minor received immediate attention from bystanders, since emergency personnel arrived within two minutes, and since the minor was dead at that time, even if Defendant had remained on the scene and rendered aid to the minor, it would not have altered the outcome of what occurred.

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3101827 CASE NUMBER: CASE TITLE:  LOPEZ SERRANO VS KIESEL [IMAGED]  37-2024-00005219-CU-PA-NC The Court recognizes the distinction being made by Defendant between pre-accident intoxication and post-accident criminal activity of fleeing the scene. The allegation of pre-accident 'impairment' is sparse and cursory. Indeed, while the word itself is a bit vague (avoiding more specific terms like 'drunk' or 'intoxicated'), it is also predicated with a qualifier that the allegation of 'impairment' is being made 'on information and belief.' However, allegations made on information and belief require some allegation of what information that belief is formed or based on. No such facts have been alleged here – i.e. there are no facts alleged to indicate Defendant's impairment such as that he was swerving his vehicle before or after the accident, that there were bottles of alcohol discovered in the car, that receipts show that he had just come from an establishment that serves alcohol, etc. As such, as Defendant points out, the criminal nature of the post-accident conduct does not bleed into or taint the pre-accident conduct – at least not without some factual basis on which to tie the two together.

Ultimately, punitive damages must be proven to a clear and convincing standard. The bare bones allegation of 'impairment' pre-accident does not meet this standard.

Nonetheless, this case is at an early stage and discovery can uncover significant facts and evidence to address the issue of 'impairment' or 'intoxication.' As such, while the Court presently denies leave to amend at this early stage of the pleading process, Plaintiff is free to utilize other legal process to seek leave to amend and add such claims if facts are uncovered in the discovery process that would support such allegations.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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