Judge: Sandy N. Leal, Case: 2022-01291369, Date: 2023-08-03 Tentative Ruling

Motion to Strike Portions of Complaint

The Motion to Strike brought by Defendant Adam Swaby is denied, in its entirety.

Pursuant to Civil Code section 3294, subdivision (a), “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code §3294, subd. (a).)

Civil Code section 3294, subdivision (c)(1) defines “malice” 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).)  Similarly, “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).) 

The court in Lackner v. North (2006) 135 Cal.App.4th 1188 defined “despicable conduct” as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Id. at 1210.)

Relevant herein, “a nonintentional tort can have the characteristics of an intentional tort to the extent of embracing the concept of malice as used in Civil Code section 3294.” (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286.)  “A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. (Citation).  Such a tort…is most accurately designated as [w]anton and reckless misconduct.” (Ibid.) Such a claim justifies an award of punitive damages. (Ibid.)  Based on the above, although labelled a claim for “negligence,” punitive damages may be recoverable, where a claim demonstrates it is akin to “wanton and reckless misconduct” and meets the requirements of malice, pursuant to Civil Code section 3294.

The two leading opinions on punitive damages in drunk driving cases are Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82 (Dawes).  These cases collectively stand for the proposition that driving while intoxicated is not enough for punitive damages, but that driving in a way which enhances an appreciable risk to others may warrant those damages.

“[W]hile 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. … One who willfully 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 896-897.)

Case law indicates that punitive damages are appropriate where the Complaint alleges sufficient facts to demonstrate Defendant “became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby.” (Peterson v. Superior Court (1982) 31 Cal. 3d 147, 163).

In this case, Plaintiffs allege “Defendant Swaby had a blood alcohol concentration level that was significantly higher than legally allowed by the State of California while operating a motor vehicle and Defendant Swaby was in violation of California Vehicle Code Section 23153(a) for driving under the influence and causing injury.” (¶14 of FAC.) The Complaint additionally alleges Defendant was driving “at an unsafe speed greater than is reasonably prudent and having no due regard for traffic.” (¶14 of FAC.)  The Complaint further alleges “Defendant Swaby’s operation of his motor vehicle at the time and place described herein were viewed by percipient witnesses as highly dangerous and erratic such that Swaby should have known that it was highly probable that harm would result therefrom due to being under the influence.” (¶15 of FAC.)

Finally, the Complaint alleges Defendant “willfully operated the aforementioned Audi vehicle after consuming alcohol; drove at a high rate of speed into the traffic ahead while the other vehicles ahead of Swaby were traveling approximately 5 to 10 miles per hour only.” (¶19 of FAC.) “When police arrived on the scene, Defendant Swaby was unable to understand and answer simple questions posed by the officer as a result of his intoxication.” (¶19 of FAC.)

While Defendant asserts the above allegations are conclusory, asserting that Plaintiffs should plead “what beverage was consumed or where the alcohol was consumed,” this argument fails.  (Motion: 6:24-26.)  The statement Defendant was driving while intoxicated is an ultimate fact.  As noted by multiple courts, “[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6). “It has been consistently held that ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”  (Ibid.)

This standard is met, by the allegations herein, and Defendant cites no authority that requires Plaintiff to identify the precise beverages consumed, which lead to intoxication. 

Additionally, the Court finds the allegations Defendant was under the influence and driving at an excessive speed, sufficient to demonstrate a “conscious disregard” of the rights of others.  (¶15 and ¶19 of FAC.)  Moreover, the Complaint alleges Defendant was aware or should have been aware, of the likely dangerous consequences of his conduct.  (Ibid.)  The same supports the request for punitive damages. “Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)