Judge Ronald F. Frank, Case 22TRCV00971 2023-04-12 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00971, Date: 2023-04-12 Tentative Ruling

Case Number: 22TRCV00971 Hearing Date: April 12, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 12, 2023¿¿

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CASE NUMBER: 22TRCV00971

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CASE NAME: Michael Trenery, Noble Witcher v. Brandon Xavier Calhoun, et al. .¿¿¿

MOVING PARTY: Defendant, Brandon X. Calhoun

RESPONDING PARTY: Plaintiffs, Michael Trenery & Noble Witcher

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TRIAL DATE: None Set.

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MOTION:¿ (1) Motion to Strike

Tentative Rulings: (1) Defendant’s Motion to Strike is denied

I. BACKGROUND¿¿

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A. Factual¿¿

On October 18, 2022, Plaintiffs Michael Trenery and Noble Witcher (collectively “Plaintiffs”) filed a complaint against Defendant, Brandon Xavier Calhoun (“Defendant”) and DOES 1 through 25 alleging causes of action for: (1) Negligence and (2) Negligence Per Se. This action is based on the allegations in Plaintiffs’ complain that on April 2, 2022, Calhoun knowingly and consciously got behind the wheel of his vehicle while under the influence of alcohol.

B. Procedural¿¿

On March 13, 2023, Defendant filed a Motion to Strike Portions of Plaintiffs’ Complaint. On April 3, 2023, Plaintiffs filed an opposition. On April 3, 2023, Defendant filed a reply brief.

¿II. MOVING PARTY’S GROUNDS

Defendant filed his Motion to strike the allegations and prayer for punitive damages. Defendant moves to strike the following language from Plaintiff’s Complaint:

1. p. 3, lines 16-21; ¶ 37: “Defendant Calhoun acted in a despicable, oppressive and malicious manner with the express intent of injuring or damaging Trenery and Witcher or with conscious disregard of their rights and with the intent to vex, injure, and annoy Trenery and Witcher, such as to constitute oppression, fraud or malice under Civil Code § 3294, thereby entitling Trenery and Witcher to punitive and exemplary damages against Defendant in a sum appropriate to punish and make an example of Defendant.”

2. p. 4, lines 19-24, ¶ 45: “Defendant Calhoun acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Trenery and Witcher or with conscious disregard of their rights and with the intent to vex, injure, and annoy Trenery and Witcher, such as to constitute oppression, fraud or malice under Civil Code § 3294, thereby entitling Trenery and Witcher to punitive and exemplary damages against Defendant in a sum appropriate to punish and make an example of Defendant.”

3. p.5, lines 9-10: “For punitive damages, according to proof, for each cause of action for which such damages are available.”

Defendant argues that he filed this Motion to Strike the above on the grounds that Plaintiff has insufficiently pled claims to support a prayer for punitive damages.

¿III. ANALYSIS¿

A. Motion to Strike

¿ Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿

B. Discussion

Civil Code section 3294, subdivision (a) authorizes punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice.”

“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 for the rights and safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “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).)

The “act of operating a 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.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) Two cases, Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82, illustrate the specificity and gravity required to support a claim of punitive damages against an allegedly intoxicated driver.

Defendant argues that Plaintiffs have not alleged sufficient facts to state a claim for punitive damages, relying on cases like Brousseau v. Jarrett (1977) 73 Cal.App.3d 386 to note that Plaintiffs cannot conclusorily characterize Defendant’s conduct as intentional, willful and fraudulent because doing so is insufficient to show oppression, fraud, or malice. Additionally, Defendant cites to College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713 to note that where malice is based on a defendant’s conscious disregard of a Plaintiff’s rights, the conduct must be both despicable and willful. Defendant argues that what was alleged in Plaintiffs’ Complaint does was a mistake, negligence, by Defendant, not something demonstrating the sort of vile, despicable, base and intentional acts that support a prayer for punitive damages

While ordinary intoxicated driving may create a risk of injury to others that is foreseeable, that risk is not necessarily probable. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89.) In Dawes, the Court found that the defendant’s decision to “zig-zag 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” was sufficient to support a claim for punitive damages. (Id.) In Taylor, the allegations that a defendant was an alcoholic who was well-aware of the nature of his alcoholism, had a history of and tendency to drive a motor vehicle while intoxicated, had previously caused an accident while driving while intoxicated, had been arrested and convicted on various other occasions for driving while intoxicated, had recently completed a period of probation for a drunk driving conviction, had his probation conditioned on refraining from driving for at least 6 hours after drinking, and had additional pending criminal charges for driving under the influence were sufficient to support a claim of punitive damages. (Taylor v. Superior Court, supra, 24 Cal.3d at p. 893.)

In opposition, Plaintiffs point out that the Complaint alleges facts that the Defendant knowingly drove while intoxicated and injured two on-duty California Highway Patrol Officers. First, the Complaint alleges that Defendant knowingly, and consciously got behind the wheel of his vehicle while under the influence of alcohol, and knowing that it is illegal to drive a vehicle while under the influence of alcohol. (Complaint, ¶¶ 5-6.) The Complaint also alleges that while driving, due to his level of intoxication, Defendant took his eyes off the roadway and veered into the officers’ vehicle. (Complaint, ¶ 12.) Plaintiff also alleges that Defendant knows in order to safely operate a vehicle the driver’s eyes must be on the road at all times. (Complaint, ¶ 13.) The Complaint also notes that Defendant admitted to drinking and driving, being the sole fault of causing the accident, and failed the field sobriety tests. (Complaint, ¶¶ 20-22.)

“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 not the driver had a prior history of drunk driving incidents.” (Taylor v. Superior Court, supra, 24 Cal.3d at p. 897.) The Taylor Court did not require that the plaintiff plead the speed of travel, zig-zagging driving patterns, a history of DUI convictions, or that defendant was an alcoholic, even though these or other factors might heighten the probability and foreseeability of an accident. The Supreme Court determined that such “aggravating factors [are not] essential prerequisites to the assessment of punitive damages in drunk driving cases.” (Id. at p. 897.) Yet the motion to strike argues exactly that, contrary to Taylor.

This Court holds that the Complaint as alleged here is sufficient at the pleading stage to support a claim for the potential recovery of punitive damages. The Court is less concerned about the defense’s feared torrent of punitive damages claims arising against drivers of expensive cars, drivers who make the conscious decision to drink and drive rather than take an Uber or Lyft or taxi after having consumed alcoholic beverages in sufficient quantifies to fail FSTs or to test above the legal limits. In Taylor and Peterson, the High Court expressed a more worrisome fear, i.e., of serious bodily injuries and deaths that could be prevented by a different conscious decision than to take the wheel when intoxicated. This Court applies that public policy. For the foregoing reasons, the Court DENIES the motion to strike the allegation and prayer for punitive damages.