Plaintiffs oppose the motion, and Defendant filed a reply.  

II. Motion to Strike 

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 has met his obligation in this regard. (Decl. Cohanghadosh, ¶¶ 5-6.) 

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.)  

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.