Judge: Shirley K. Watkins, Case: 22VECV01779, Date: 2023-02-09 Tentative Ruling

Case Number: 22VECV01779    Hearing Date: February 9, 2023    Dept: T

            [TENTATIVE] ORDER:  Defendant Nensy Panduro’s Motion to Strike Punitive Damages is DENIED.  Answer to complaint in 20 days. 

Introduction

            Defendant Nensy Panduro (Defendant) moved to strike the request for punitive damages from Plaintiff Jennifer Granados (Plaintiff) First Amended Complaint (FAC.)

            Discussion 

            Defendant argued that there are insufficient facts to support the claim for punitive damages because facts are not pled to show malice, oppression, or fraud.  Plaintiff argued that there is sufficient fact pleading to show Defendant’s conscious disregard of the safety of others to show malice.  The conscious disregard of the safety of others may constitute malice, and justify an award of punitive damages, where a defendant was aware of the probable dangerous consequences of the conduct, yet willfully and deliberately failed to avoid them, as distinguished from mere negligence or recklessness.  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.)  Plaintiff alleged that Defendant was “distracted, impaired and/or disabled” while driving on the 101 freeway and Plaintiff alleged that Defendant drove his vehicle with this knowledge.  (FAC par. 8.)  Plaintiff alleged that Defendant “failed to keep a look out, failed to control his vehicle, allowed his vehicle drifted [sic] from side to side and weave in and out of lanes;” “failed to stop and render aid to Plaintiff, and instead fled the scene in order to escape any liability;” and after the accident, “missed his exit home and ended up sleeping on the side of the road for at least two hours.”  (FAC pars. 11.A.and B.)  Although Plaintiff’s claims do not allege that Defendant was intoxicated while driving, the Court looks to case law involving drunk-drivers as being instructive. 

In Taylor v. Superior Court (1979) 24 Cal.3d 890 (Taylor,) the Court held that driving a vehicle while intoxicated may in appropriate circumstances evidence a “conscious disregard of probably injury to others” to warrant an award of punitive damages.   (See also Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90 (Dawes.))  The Taylor court drew a distinction, later acknowledged in Dawes, between a driver who is intoxicated “without more” in that “risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.”  To plead punitive damages, one must plead “probability.”   This can be accomplished in two ways: In Taylor, the court found sufficient specificity in the pleading of intoxication, the manner of driving, and the defendant’s prior history of arrests for driving under the influence (conditions of probation in which he was advised of the dangers of intoxication and barred from driving after imbibing alcoholic beverages). In Dawes, the court looked again to intoxication, but also focused upon the manner of driving, which could, in certain circumstances, itself amount to a conscious disregard of the safety of and probable injury to others.  (Dawes, supra, at pp. 88-89 [plaintiff alleged that defendant ran a stop sign, and was zigzagging in and out of traffic at a speed in excess of 65 miles per hour in a 35 mile per hour zone at the entrance to a popular recreation area on a Sunday afternoon when many pedestrians and bicyclists were in the immediate vicinity, and that immediately after the accident defendant and his passenger falsely reported to police that passenger, not defendant, was driving].)  Whether one focuses upon either Taylor or Dawes, specific facts must be pled to allege “the conscious disregard of probable injury to others.”  (Dawes, supra, at pg. 90.)

In addition to driving while “distracted, impaired and/or disabled,” Plaintiff must plead other misconduct showing aggravating circumstances that will support a claim for punitive damages. Comparing the facts alleged in Dawes with Plaintiff’s allegations, Plaintiff pled sufficient facts to show aggravating circumstance to support a conscious disregard of probable injury.  Plaintiff’s allegations that Defendant did not look, failed to control his vehicle, including drifting from side to side, and weaving in and out of lanes on a freeway (which infers freeway speeds,) fled the scene, and slept on the side of the road are sufficient to show Defendant’s conscious disregard for the probability of injury to others.  Despite Defendant’s argument otherwise, the allegations are sufficient to plead malice. 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.