Defendants Bryan Perez Rodriguez’s and Neri Rodriguez’s Motion to Strike the “Punitive” Attachment from Plaintiffs’ Complaint is GRANTED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested and will require an offer of proof if so.

Background   

Plaintiffs Sheldon Ross and Pamela Jones Colcote (together, “Plaintiffs”) sustained injuries in a May 2, 2021 motor vehicle accident.

On May 15, 2023, Plaintiffs filed a First Amended Complaint, asserting causes of action against Bryan Perez Rodriguez, Neri Rodriguez (together, “Defendants”) and Does 1-25 for:

1.                  Motor Vehicle

2.                  General Negligence

A Case Management Conference is set for November 8, 2023.

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “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.)

Discussion

Defendants move the court for an order striking out the “Punitive” attachment to Plaintiffs’ complaint.

Punitive damages may be awarded in an action for the breach of an obligation not arising from contract upon clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)

“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.” (Civ. Code § 3294, subd. (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.” (Civ. Code § 3294, subd. (c)(2).) “Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd. (c)(3).)

A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice. . .’” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

The California Supreme Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 892 determined 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.” In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, the Fourth District Court of Appeal noted 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." Notably, both Taylor and Dawes were decided prior to 1987, when the Legislature added the requirement to Civil Code § 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard.

Plaintiffs have alleged, without more, that:

Before the collision in question, Defendant voluntarily began drinking, and did

in fact consume, a large quantity of alcohol with the intention and expectation of operating a motor vehicle shortly thereafter. Defendant knew and was fully aware

that he was going to be required to drive his vehicle when he first began drinking

alcohol and nevertheless consumed a large quantity of alcohol knowing the risk

that he would be intoxicated as a result thereof. At the time of the collision,

defendant was driving his vehicle under the influence of alcoholic beverage or

drue [sic], or under the bombined [sic] influlene [sic] of alcoholic beverage and

drug, and while under the influence was negligent in driving his vehicle, in

violation of Vehicle Code Sections 23152(a); 23152(b); 23578, and these

violations were the legal cause of Plaintiffs’ serious injuries and property

damage as described herein.

 

Prior to the impact between Plaintiffs’ and Defendant’s vehicles, Defendant,

Bryan Perez Hernandez was driving at a high rate of speed on the I-605 Fwy in

reckless disregard of the rights and safety of others on the freeway. Thus,

defendant did willfully and knowingly consume great quantities of alcoholic

beverages to the point of intoxication and drunkenenes [sic] and, knownging [sic]

full well that he was intoxicated from excess drinking of alcoholic beverages, did

decide to operate and did operate his motor vehicle. Said operation of a motor

vehicle was done with a conscious disregard to the safety of others, including

Plaintiffs. While operating his motor vehicle, Defendant was aware of the proper consequences.

 

Plaintiffs, however, have failed to allege specific facts showing malice and/or any other aggravating circumstances in the instant case; as such, the motion is granted.