Judge: Serena R. Murillo, Case: 21STCV41088, Date: 2022-12-06 Tentative Ruling
Case Number: 21STCV41088 Hearing Date: December 6, 2022 Dept: 29
TENTATIVE
Defendant’s motion to strike is GRANTED
with 30 days leave to amend.
Legal Standard
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(b)(1).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (Code Civ. Proc., § 436; Stafford v.
Shultz (1954) 42 Cal.2d 767, 782.)
Meet and Confer
The motion to strike is accompanied by the declaration of Shirley
Carpenter Bridwell which satisfies the meet and confer requirement. (Code Civ.
Proc. § 435.5.)
Discussion
Defendant moves to strike portions of Plaintiff’s complaint praying for punitive damages, arguing
punitive damages are not recoverable in a wrongful death action.
As a rule of law,
it has long been established one cannot recover punitive damages in a wrongful
death claim under California law. (Ford Motor Co. v. Superior Ct. (1981)
120 Cal.App.3d 748, 751; Tarasoff v. Regents of University of California
(1976) 17 Cal.3d 425, 450; Fox v. Oakland Con. St. Ry. (1897) 118 Cal.
55, 67; Lange v. Schoettler (1896) 115 Cal. 388, 391; Stencel Aero
Engineering Corp. v. Superior Ct. (1976), 56 Cal.App.3d 978, 983; Pease
v. Beech Aircraft Corp. (1974), 38 Cal.App.3d 450, 460-462; Doak v.
Superior Ct. (1968), 257 Cal.App.2d 825, 836.) The California Court of
Appeals in Ford held that the purpose of restricting the plaintiff in a
wrongful death action to compensatory damages is to place a reasonable limit on
his recovery and determined that the legislature feared that recovery would be
excessive in cases involving death. (Ford Motor Co. v. Superior Ct., supra,
120 Cal.App.3d 748, 752.)
Defendant argues that the only way
to recover punitive damages in California in a death case is through a survivor
action on behalf of the decedent’s estate under Code of Civil Procedure §
377.34. However, Defendant argues, the lawsuit is not by the decedent’s estate.
Further, a survivor action, and any related punitive damage claim, can only be
pursued where the decedent sustained an economic loss before death. (County
of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 304.)
The Court notes
that Plaintiff is not alleging punitive damages in connection with her cause of
action for wrongful death, and only as to the survivor cause of action.
Therefore, the Court cannot strike punitive damages on this ground. Defendant
has not brought a demurrer to challenge whether Plaintiff has sufficiently
stated a cause of action for survivor. However, nevertheless, the complaint
alleges in paragraph 21: “By reason of the subject incident, Plaintiffs’
DECEDENT, was compelled to and did employ the services of paramedics,
hospitals, surgeons, physicians, nurses and other health care providers, for
medical treatment and care, and did incur medical expenses prior to his
death, in a sum according to proof at trial.” (Complaint, ¶ 21.) As such, decedent’s economic loss
before death is alleged, contrary to Defendant’s argument.
Defendant also argues that Plaintiff has not sufficiently pled a
claim for punitive damages.
To state a claim for punitive damages under Civil Code section
3294, a plaintiff must allege specific facts showing that the defendant
has been guilty of malice, oppression or fraud. (Smith v. Superior Court
(1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be
pled with specificity; conclusory allegations devoid of any factual assertions
are insufficient. (Id.) A motion to strike may lie where the facts alleged, if
proven, would not support a finding that the defendant acted with malice, fraud
or oppression. (Turman v. Turning Point of Central California (2010) 191
Cal. App. 4th 53, 63.)
“Malice” is defined in section 3294(c)(1) as “conduct which is
intended by the defendant to cause injury” or “despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as
“despicable conduct subjecting a person to cruel and unjust hardship in
conscious disregard of that person’s rights.” The term “despicable” has been
defined in the case law as actions that are “base,” “vile,” or “contemptible.”
(See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing,
Inc. (2000) 78 Cal. App. 4th 847, 891.)
To prove that a defendant acted with “willful and conscious
disregard of the rights or safety of others,” it is not enough to prove
negligence, gross negligence or even recklessness. (Dawes v. Superior Court
(1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts
demonstrating that “the defendant acted in such an outrageous and reprehensible
manner that the jury could infer that he [or she] knowingly disregarded the
substantial certainty of injury to others.” (Id. at 90). Further, the
allegations must be sufficient for a reasonable jury to conclude that
Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)
The complaint alleges that defendant
negligently operated a motor vehicle such that it collided with Plaintiff’s
decedent’s motorcycle, causing his death. Plaintiff alleges Defendant was under
the influence of alcohol at the time of the collision.
Defendant argues that Plaintiff has not
pled facts to support a finding that Defendant’s alleged driving under the
influence of a substance is “despicable conduct” sufficient to meet the high
standard imposed by Civil Code § 3294
In Taylor v. Superior Court (1979) 24 Cal.3d 890, 892, the 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. Taylor 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 p. 892.)
Notably, Dawes v.
Superior Court (1980) 111
Cal.App.3d 82, 89, 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 [the defendant’s] conduct under the circumstances alleged was probable.” (Dawes
v. Sup. Ct. (1980) 111 Cal.App.3d 82, 89.)
Further, Taylor was
decided prior to 1987, at which time the Legislature added the requirement to
Civil Code Section 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. “[T]he statute's reference to
‘despicable’ conduct seems to represent a new substantive limitation on
punitive damage awards.¿Used in its ordinary sense, the adjective ‘despicable’
is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or
‘contemptible.’ (4 Oxford English Dict. (2d ed. 1989) p. 529.)¿As amended to
include this word,¿the statute plainly indicates that absent an intent to
injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’
disregard of the plaintiffs' interests. The additional component of ‘despicable
conduct’ must be found.” (Coll. Hosp., supra, 8 Cal. 4th
at 725 [emphasis added].) There has been no subsequent decision holding
that drinking and driving, without exacerbating circumstances that make injury
probable, gives rise to a claim for punitive damages.
The Court finds
that the allegations in the complaint regarding the intoxication
of Defendant are insufficient to support the imposition of punitive
damages. There are no potential aggravating circumstance alleged. As
discussed in Taylor and Dawes, specific factual
circumstances must be pled which show that the risk of injury was
probable, e.g., weaving through lanes of traffic, a previous conviction
for driving under the influence of alcohol, or driving while
simultaneously drinking alcohol. The fact that Defendant was under the
influence, without more specific facts of aggravating circumstances does not
warrant punitive damages.
Conclusion
Accordingly,
Defendant’s motion to strike punitive damages is GRANTED with 30 days leave to
amend the complaint.
Moving party is
ordered to give notice.