Judge: Serena R. Murillo, Case: 21STCV45010, Date: 2022-10-21 Tentative Ruling
Case Number: 21STCV45010 Hearing Date: October 21, 2022 Dept: 29
Veronica
Monger v. Andrea Yvette Leon
Motion to Strike Punitive Damages filed by
Defendant Andrea Yvette Leon
TENTATIVE
Defendant Andrea Yvette Leon’s motion
to strike punitive damages 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.)
Punitive damages may be recovered upon a
proper showing of malice, fraud, or oppression. (Code Civ. Proc., §
3294.) “Malice” is defined as conduct intended to cause injury to a
person or despicable conduct carried on with a willful and conscious disregard
for the rights or safety of others. (Turman v. Turning Point of Cent.
Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means
despicable conduct subjecting a person to cruel and unjust hardship, in
conscious disregard of the person’s rights. (Id.) “Fraud” is
an intentional misrepresentation, deceit, or concealment of a material fact
known by defendant, with intent to deprive a person of property, rights or
otherwise cause injury. (Id.)
Discussion
Meet and
Confer
CCP § 435.5 requires a moving party in
certain civil actions, before filing a motion to strike, to engage in a
specified meet and confer process with the party who filed the
pleading subject to the motion to strike for the purpose of determining
whether an agreement can be reached as to the filing of an amended pleading
that would resolve the objections to be raised in the motion to
strike.
Here, Defendant has satisfied the meet and
confer requirements by filing a meet and confer declaration which complies with
CCP § 435.5. (Palmer Decl. ¶ 3.)
Merits
Defendant moves to
strike Plaintiff’s claim related to punitive damages on the ground that
Plaintiff has failed to allege facts sufficient to support a finding of malice
under Civil Code § 3294. Plaintiff’s complaint alleges that Defendant was
driving while intoxicated when she negligently caused the accident that
caused Plaintiff’s injuries.
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 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.” (Id. at
p. 897.)
To properly allege punitive damages in a
motor vehicle accident action, a plaintiff needs to “establish that the
defendant was aware of the probable dangerous consequences of his conduct, and
that he willfully 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.)
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, 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.