Judge Steven A. Ellis, Case Number: 23STCV29697, Date: 2024-03-14 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV29697, Date: 2024-03-14 Tentative Ruling

Case Number: 23STCV29697 Hearing Date: March 14, 2024 Dept: 29

Motion to Strike filed by Defendant Noreen Marie Dimster-Denk.

Tentative

The motion to strike is granted with leave to amend.

Background

On December 5, 2023, Jose Sanchez (“Plaintiff”) filed a complaint against Noreen Marie Dimster-Denk (“Defendant”) and Does 1 through 100, asserting a cause of action for motor vehicle negligence arising out of an automobile accident that occurred on May 11, 2022, at or near the intersection of Washington Boulevard and Mariposa Avenue in Los Angeles.

Defendant filed this motion to strike the punitive damages allegations in Plaintiff’s complaint on February 6, 2024. Plaintiff filed an opposition on February 27, 2024. Defendant filed a reply on March 1, 2024.

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, subd. (b)(1).)

A motion to strike challenges “any irrelevant, false, or improper matter inserted in any pleading” or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) In ruling on a motion to strike, the court must assume the truth of the properly pleaded facts in the complaint or other pleading. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Discussion

The motion to strike is accompanied by the declaration of Honey Shaw, which satisfies the statutory meet and confer requirement. (Code of Civ. Proc. § 435.5, subd. (a).)

Defendant requests the Court strike punitive damages from Plaintiff’s complaint. Defendant contends that punitive damages cannot be recovered for negligent conduct, and that although Plaintiff alleges that Defendant was driving under the influence, Plaintiff’s complaint lacks sufficient allegations to support the claim for punitive damages.

To recover punitive damages in a tort action, Civil Code section 3294, subdivision (a), requires that a plaintiff prove by clear and convincing evidence “that the defendant has been guilty of oppression, fraud, or malice.” In subdivision (c), the Legislature defines the terms “oppression,” “fraud,” and “malice” for purposes of recovering punitive damages under section 3294:

(1) “Malice” means 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.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3).)

To plead 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. (College Hospital, Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 721; Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1042.) The basis for punitive damages must be pleaded with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.; see also Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) 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. (Today IV’s Inc. v. Los Angeles County MTA (2022) 83 Cal.App.5th 1137, 1193; Turman, supra, 191 Cal.App.4th at p. 63.)

In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court addressed whether punitive damages may be recovered in an action based upon allegedly intoxicated driving. As the court, stated, “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.” (Id. at p. 892.) “One who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’” (Id. at p. 899.) But the court also noted, “Although the circumstances in a particular case may disclose similar wilful or wanton behavior in other forms, ordinarily,

routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” (Id. at pp. 899-900.)

Subsequently, in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, the Court of Appeal, applying and interpreting Taylor, held that driving while intoxicated does not always give rise to a claim for punitive damages. (Id. at p. 89.) “[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.” (Ibid.)

In addition, in 1987, approximately eight years after Taylor was decided, the Legislature amended Civil Code Section 3294 to add the reference to “despicable” conduct as part of the definition of malice. This was “a new substantive limitation on punitive damage awards.” (College Hospital, supra, 8 Cal.4th at p. 725.)

“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.”

(Ibid.; see also CACI 3940 [“Despicable conduct is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”].)

Here, although Plaintiff’s complaint alleges that Defendant was driving under the influence (Complaint, at p. 5), Plaintiff otherwise alleges that Defendant negligently operated his vehicle which resulted in Plaintiff’s injuries. (Complaint, at p. 4.) There are no specific factual allegations in the complaint that would, if proven, establish that the risk of injury to other was probable or otherwise that the Defendant acted with oppression, fraud, or malice. For that reason, the Court GRANTS Defendant’s motion to strike.

As this is the initial complaint and the defect is one of specificity in pleading, the Court GRANTS Plaintiff leave to amend.

Conclusion

The Court GRANTS Defendant’s motion to strike with leave to amend.

The Court STRIKES the reference to punitive damages in the Complaint on page 3 (items 11(g) and 14(a)(2)) and the entirety of page 5 of the Complaint.

The Court GRANTS Plaintiff leave to amend within 21 days of notice.

The Court ORDERS Defendant to give notice.