SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Ireneo Deypalan (‘Plaintiff”) filed this action against Defendant Halyna Nicolle Calderon (“Defendant”) for injuries arising from an automobile incident. After the Court granted Defendant’s motion to strike punitive damages with leave to amend on September 13, 2023, Plaintiff filed a First Amended Complaint (“FAC”) on October 3, 2023. 

Defendant moves to strike the FAC on the same grounds that the allegations are insufficient to support a claim for punitive damages. Plaintiff opposes the motion, and Defendant filed a reply.  

 

II. Meet and Confer  

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike.¿(Code of Civ. Proc. sections 430.41; 435.5.)¿  

The Court finds Defendant fulfilled this requirement prior to filing its motion to strike.  (Kandarian-Stein. Decl. ¶¶ 5-7.) 

 

III. Legal Standard 

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (CCP § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (CCP § 436.)  

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 wilfully 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 simply needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully 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.)  

The Taylor court justified imposing punitive damages upon the “deliberate” drunk driver for many reasons, including the high degree of foreseeability of injury and damage flowing from driving while intoxicated.  The court says the essential allegation is that defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby.  The decision also discusses the grave havoc wrought by intoxicated drivers nationwide and equates the act of deliberately driving while under the influence with a conscious and deliberate disregard of the interests of others which may be described as willful or wanton. Such conduct, the court said, has traditionally been a basis for awarding punitive damages. (Herrick v. Superior Court (1987) 188 Cal.App.3d 787, 790.)  

 “There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated.  [Citation.]  One who wilfully 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.  The effect may be lethal whether or nor the driver had a prior history of drunk driving incidents.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897.)  “[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.”  (Id., at p. 897.)  

The Taylor court 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 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 Mardian's conduct under the circumstances alleged was probable.”  (Dawes v. Superior Court (1980) 111 Cal.App.3d 82.)    

The court went on to note, “In contrast, in the case at bench, as previously noted, petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. Justice Franson aptly noted the distinction in his article on punitive damages in vehicle accident cases: Allegations 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 crowded 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. This would be particularly true if the defendant had not been drinking, or, if drinking, he was not under the influence to the point where he was incapable of being aware of the situation confronting him. Under these circumstances, it reasonably might be said that the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others."  

Further complicating the matter, in 1987, after all of the foregoing cases were decided, the legislature amended Civil Code § 3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support imposition of punitive damages.   

 

Here, the Complaint alleges in its entirety:  

“Defendant breached her duty of care owed to Plaintiff by traveling at an unreasonable speed and following Plaintiff's vehicle too closely, in violation of California Vehicle Codes § 22350 and 21703. Defendant failed to keep a proper lookout for other vehicles on the highway, causing her to collide into Plaintiff's vehicle. Defendant's breach of duty caused Plaintiff's damages. Additionally, Defendant was convicted on April 13, 2023, for driving while under the influence on February 14, 2023, in violation of California Vehicle Code § 23152(a). Defendant was with her vehicle on February 14, 2023, knowing she was going to drink and drive. Additionally, her blood alcohol concentration immediately following the accident was 0.3, almost four times the legal limit. Based on the property damage, Defendant was so intoxicated that she failed to apply the brakes. Despite her severe intoxication, Defendant sat behind the wheel of her vehicle and drove.” 

(Compl. at p. 5.)   

  Allegations that Defendant’s intoxication level was above the legal limit, that she knew she was going to drink and drive, and that she was convicted for driving under the influence related to the incident are insufficient to demonstrate despicable conduct. For example, the complaint in Taylor not only alleged that defendant was intoxicated at the time of the accident, but also that he “had previously caused a serious accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident . . . [defendant there had] recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.” (Taylor, supra, 24 Cal.3d at 893.) What is more, the complaint alleged that defendant was already intoxicated and continuing to drink alcohol in his vehicle at the time of the accident. (Ibid.) 

The essence of Plaintiff’s FAC remains the same despite the additional allegations, and do not rise to the level of meeting the standard to impose punitive damages.  

Therefore, the request to strike the prayer for punitive damages is granted. 

 

IV. Leave to Amend 

The burden is on Plaintiff to show in what manner he 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.)  "Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question."  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) Plaintiff does not provide any additional facts or allegations to meet this burden.  

Therefore, the motion is GRANTED without leave to amend at this time. However, should Plaintiff later discover additional information to provide a cognizable basis for punitive damages, this ruling will not prevent Plaintiff from filing a motion for leave to amend the complaint.