I. BACKGROUND 

Plaintiff Roberto Cornel (“Plaintiff”) filed this action against defendant Brian Paul Law (“Defendant”) for injuries arising from an automobile incident. The complaint sets forth a single cause of action for negligence, and includes a prayer for punitive damages.  

Defendant now moves to strike the prayer for punitive damages and any and all reference to punitive or exemplary damages. Any opposition was due on or before March 13, 2024; the motion is unopposed. 

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. §§ 430.41; 435.5.)¿  

Here, defense counsel sent a single correspondence letter to Plaintiff’s counsel. There is no indication that there were any further attempts to meet and confer, or that the parties discussed the issues set forth in the motion. Therefore, the Court finds Defendant has not met his obligation in this regard. However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  (Code Civ. Proc., § 435.5(a)(4).) Therefore, the Court will consider Defendant’s motion on the merits.  

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 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.) 

Here, the complaint alleges in pertinent part: 

“10. At all times mentioned in this complaint, defendant BRIAN PAUL LAW , WERE driving and operating the automobile UNDER THE INFLUENCE (despicable conduct) with the consent, permission, and knowledge of defendant, BRIAN PAUL LAW, and/or or authorized agents. 

11. On JANUARY 21, 2023, defendant BRIAN PAUL LAW, and/or, negligently operated a certain automobile, UNDER THE INFLUENCE, (despicable conduct) and, as a proximate result of that negligent operation, collided with plaintiff's automobile. […].” 

(Compl. at ¶¶ 10-11, emphasis omitted.) 

A conclusory allegation that Defendant was operating a motor vehicle under the influence is not sufficient to state a claim for punitive damages. Conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) If it were, it would essentially mean anyone driving under the influence would be subject to punitive damages. There are no additional allegations showing any other aggravating factors, and the current allegations do not equate to the kind of outrageous or extreme conduct required to sustain a claim for punitive damages. 

Therefore, the request to strike punitive damages is granted. 

III. CONCLUSION 

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.) However, Plaintiff did not oppose the motion, and necessarily fails to meet this burden. 

Accordingly, the motion to strike punitive damages is GRANTED without leave to amend.  

Moving party is ordered to give notice.    

PLEASE TAKE NOTICE: 

Dated this 25th day of March 2024