Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
1. FISHER v. WOODMONT REAL ESTATE SERVICES PC-20150381
(1) Defendants Sobrato Development Companies, LLC’s, SI 48, LLC’s, and Sobrato’s
Demurrer to Complaint.
(2) Defendants Sobrato Development Companies, LLC’s, SI 48, LLC’s, and Sobrato’s
Motion to Strike.
TENTATIVE RULING # 1: UPON REQUEST OF THE DEMURRING AND MOVING PARTIES,
THESE MATTERS ARE DROPPED FROM THE CALENDAR.
1
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
2. PARE v. OMARA PC-20150432
Defendant’s Motion to Strike Punitive Damages Allegations from Complaint.
Plaintiffs filed an action against defendant related to an alleged rear-end motor vehicle
collision. Plaintiffs assert the following causes of action against defendant: negligent operation
of the motor vehicle, general negligence, and loss of consortium. Plaintiffs pray for an award of
compensatory and punitive damages.
Defendant moves to strike the allegations and claim for punitive damages on the ground
that the allegations of fact are insufficient to support a claim that defendant’s conduct was
despicable.
Plaintiffs oppose the motion on the ground that sufficient facts have been pled to justify an
award of punitive damages against defendant as an intoxicated driver.
Defendant objects to the documents attached to the declaration in opposition and replied to
the opposition.
“A motion to strike, like a demurrer, challenges the legal sufficiency of the complaint's
allegations, which are assumed to be true. (See Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255, 79 Cal.Rptr.2d 747 [an order striking punitive damages allegations is
reviewed de novo].)” (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53.) “In passing
on the correctness of a ruling on a motion to strike, judges read allegations of a pleading
subject to a motion to strike as a whole, all parts in their context, and assume their truth.
(Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519, 11
Cal.Rptr.2d 161; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91, 168 Cal.Rptr. 319;
see California Judges Benchbook, Civil Proceedings Before Trial (1995) § 12.94, p. 611.) In
ruling on a motion to strike, courts do not read allegations in isolation. (Perkins v. Superior
2
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
Court (1981) 117 Cal.App.3d 1, 6, 172 Cal.Rptr. 427.)” (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255.)
“In 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.” (Civil Code, § 3294(a).)
“ ‘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.” (Civil Code, § 3294(c)(1).)
“ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.” (Civil Code, § 3294(c)(2).)
“Not only must there be circumstances of oppression, fraud or malice, but facts must be
alleged in the pleading to support such a claim. (Citation omitted.)” (Grieves v. Superior Court
(1984) 157 Cal.App.3d 159, 166.)
The Supreme Court long ago held that allegations of facts in addition to driving under the
influence could establish conscious disregard for the safety of others supporting a claim for
punitive damages. The Supreme Court stated: “Relying on Gombos v. Ashe, supra, 158
Cal.App.2d 517, 322 P.2d 933, defendant asserts that historically the act of driving while
intoxicated has never been considered “malice” under section 3294. In Gombos, plaintiff had
alleged that defendant drove his car in a “ ‘highly reckless manner with absolute disregard and
callous indifference to the rights and safety’ ” of others, in that he became “knowingly and
wilfully intoxicated” despite his knowledge that his intoxication “rendered him physically unfit” to
drive safely. Despite these allegations, the court held that “. . . it is quite apparent that such
facts fall short of alleging malice in fact, express or implied. One who becomes intoxicated,
3
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
knowing that he intends to drive his automobile on the highway, is of course negligent, and
perhaps grossly negligent. It is a reckless and wrongful and illegal thing to do. But it is not a
malicious act.” (p. 527, 322 P.2d p. 940.) ¶ Plaintiff seeks to distinguish Gombos by stressing
the additional allegations in the present complaint which include defendant's history of
alcoholism, his prior arrests and convictions for drunk driving, his prior accident attributable to
his intoxication, and his acceptance of employment involving the transportation of alcoholic
beverages. Certainly, the foregoing allegations may reasonably be said to confirm defendant's
awareness of is inability to operate a motor vehicle safely while intoxicated. Yet the essence of
the Gombos and present complaints remains the same: Defendant became intoxicated and
thereafter drove a car while in that condition, despite his knowledge of the safety hazard he
created thereby. This is the essential gravamen of the complaint, and 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. ¶ We note that when Gombos was decided it was
unclear whether, as a general principle, an award of punitive damages could be based upon a
finding of defendant's conscious disregard of the safety of others. In the evolution of this area
of tort law during the ensuing 20 years it has now become generally accepted that such a
finding is sufficient. Examining the pleadings before us, we have no difficulty concluding that
they contain sufficient allegations upon which it may reasonably be concluded that defendant
consciously disregarded the safety of others. There is a very commonly understood risk which
attends every motor vehicle driver who is intoxicated. (See Coulter v. Superior Court, supra, 21
Cal.3d 144, 152-154, 145 Cal.Rptr. 534, 577 P.2d 669.) One who wilfully 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
4
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
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. ¶ The allowance of punitive damages in such cases may well be appropriate
because of another reason, namely, to deter similar future conduct, the “incalculable cost” of
which is well documented. (E. g., Coulter, supra, p. 154, 145 Cal.Rptr. 534, 577 P.2d 669.)”
(Emphasis added.) (Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897.)
However, the Taylor opinion predates the 1987 amendment of Civil Code, § 3294, which
added to the definition of malice the requirement that there be despicable conduct.
The Third District Court of Appeal has stated: “The adjective “despicable” connotes conduct
that is “ ‘... so vile, base, contemptible, miserable, wretched or loathsome that it would be
looked down upon and despised by ordinary decent people.’ ” (Mock v. Michigan Millers Mutual
Ins. Co. (1992) 4 Cal.App.4th 306, 331, 5 Cal.Rptr.2d 594, quoting BAJI No. 14.72.1 (1989
rev.); Cloud v. Casey (1999) 76 Cal.App.4th 895, 912, 90 Cal.Rptr.2d 757.) “ ‘[A] breach of a
fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive
damages. [Citation.] The wrongdoer “ ‘must act with the intent to vex, injure, or annoy, or with a
conscious disregard of the plaintiff's rights. [Citations.]’ ” Punitive damages are appropriate if
the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The
mere carelessness or ignorance of the defendant does not justify the imposition of punitive
damages.... Punitive damages are proper only when the tortious conduct rises to levels of
extreme indifference to the plaintiff's rights, a level which decent citizens should not have to
tolerate.' ” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287, 31
Cal.Rptr.2d 433.) ¶ The definition of malice has not always included the requirement of willful
and despicable conduct. Prior to 1980, section 3294 did not define malice. It was construed to
mean malice in fact, which could be proven directly or by implication (Taylor v. Superior Court
5
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
(1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854 (Taylor); 6 Witkin, Summary of
Cal. Law (9th ed. 1988) Torts, § 1335, p. 793) and could be established by conduct that was
done only with “a conscious disregard of the safety of others....” (Taylor, supra, at p. 895, 157
Cal.Rptr. 693, 598 P.2d 854.) Relying on the reasoning in G.D. Searle & Co. v. Superior Court
(1975) 49 Cal.App.3d 22, 122 Cal.Rptr. 218, the Taylor court recognized that recklessness
alone is insufficient to sustain an award of punitive damages because “ ‘[t]he central spirit of
the exemplary damage statute, the demand for evil motive, is violated by an award founded
upon recklessness alone.’ ” (24 Cal.3d at p. 895, 157 Cal.Rptr. 693, 598 P.2d 854.) The court
concluded that “[i]n order to justify an award of punitive damages on this basis, the plaintiff
must 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 pp.
895-896, 157 Cal.Rptr. 693, 598 P.2d 854.) Applying that test, the Supreme Court directed the
trial court to reinstate a claim for punitive damages where it was alleged the defendant was
operating a motor vehicle while intoxicated, under circumstances which disclosed a conscious
disregard of the probable dangerous consequences. [FN 14.] ¶ FN14. The circumstances
alleged in Taylor were that a car driven by the defendant collided with plaintiff's car causing
him serious injuries, that at the time of the collision, the defendant was drinking an alcoholic
beverage and under its influence, he had been an alcoholic for a substantial period of time and
was well aware of the serious nature of his alcoholism, he had a history and practice of driving
a motor vehicle while under the influence of alcohol, he had previously caused a serious
automobile accident while under the influence of alcohol, and had been convicted numerous
times for driving under the influence of alcohol. (Id. at p. 893, 157 Cal.Rptr. 693, 598 P.2d
854.) ¶ In 1980, the Legislature amended section 3294 by adding the definition of malice stated
in Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854. (Stats.1980, ch. 1242, § 1,
6
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
pp. 4217-4218; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713, 34
Cal.Rptr.2d 898, 882 P.2d 894.) That definition was amended in 1987. As amended, malice,
based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's
conduct is “despicable” and “willful.” (Stats.1987, ch. 1498, § 5.) The statute's reference to
“despicable conduct” represents “a new substantive limitation on punitive damage awards.”
(College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at p. 725, 34 Cal.Rptr.2d 898, 882
P.2d 894.) ¶ Additionally, the 1987 amendment increased the burden of proof. Malice or
oppression must now be established “by clear and convincing evidence.” (Stats.1987, ch.
1498, § 5.) That standard “requires a finding of high probability .... ‘ “so clear as to leave no
substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable
mind.” ’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d
198, superseded by statute on other grounds as stated in Orange County Social Services
Agency v. Jill V. (1994) 31 Cal.App.4th 221, 229, 36 Cal.Rptr.2d 848; Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891, 93 Cal.Rptr.2d
364.) ¶ Because punitive damages are imposed “for the sake of example and by way of
punishing the defendant” (§ 3294, subd. (a)), they are typically awarded for intentional torts
such as assault and battery, false imprisonment, intentional infliction of emotional distress,
defamation, nuisance intentionally maintained, fraud, trespass, conversion, civil rights
violations, insurer's breach of covenant of good faith, wrongful termination and job
discrimination, and products liability cases. (See cases collected in 6 Witkin, Summary of Cal.
Law, supra, Torts, §§ 1349-1365, pp. 810-833.) In Cloud v. Casey, supra, 76 Cal.App.4th at
page 912, 90 Cal.Rptr.2d 757, an employment discrimination case, the court found that
intentional discrimination, coupled with an attempt to hide the illegal reason for the
discrimination with a false explanation, was despicable. ¶ On the other hand, cases involving
7
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
unintentional torts are far fewer and the courts have had to consider various factors in
determining whether the defendant's conduct was despicable. Thus, punitive damage awards
have been reversed where the defendant's conduct was merely in bad faith and overzealous
(Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1288, 31 Cal.Rptr.2d 433 [bad
faith denial of an insurance claim]; Shade Foods, Inc. v. Innovative Products Sales &
Marketing, Inc., supra, 78 Cal.App.4th at p. 892, 93 Cal.Rptr.2d 364 [same]), or the defendant
took action to protect or minimize the injury to the plaintiff. (American Airlines, Inc. v. Sheppard,
Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 117 Cal.Rptr.2d 685 [breach of
fiduciary duty where defendant attorney attempted to protect the plaintiff's interests after
agreeing to appear as a deposition witness for another client over the objections of plaintiff, a
prior and current client]; Mayfield v. Johnson (Miss.1967) 202 So.2d 630 [automobile
collision].) ¶ Plaintiff has not cited any cases involving a collision where the court found the
defendant's conduct was despicable, and we have found no California cases on point. While
the court in Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, held that punitive
damages may be assessed where the defendant was driving under the influence of alcohol at
the time of the collision, despicable conduct was not a requirement when Taylor was decided.”
(Emphasis added.) (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1212.)
Although the Supreme Court in Taylor did not address the despicable conduct element of
malice, which was not added to the definition in Section 3294(c)(1) until years later, the
Supreme Court did explain its reasoning for finding the conduct alleged was sufficient to merit
punitive damages in the following manner: “It is crystal clear to us that courts in the formulation
of rules on damage assessment and in weighing the deterrent function must recognize the
severe threat to the public safety which is posed by the intoxicated driver. The lesson is self-
8
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
evident and widely understood. Drunken drivers are extremely dangerous people.” (Taylor v.
Superior Court (1979) 24 Cal.3d 890,899.)
Drunken drivers who wilfully consume alcoholic beverages to the point of intoxication
knowing that they thereafter must operate a motor vehicle are extremely dangerous persons
whose conduct in endangering the public is a severe threat to public safety that can be
described as so vile, base, contemptible, miserable, wretched or loathsome that it would be
looked down upon and despised by ordinary decent people. In other words, it amounts to
despicable conduct.
The exemplary damages attachment to the complaint alleges: defendant voluntarily drank
alcoholic beverages to the point of intoxication, which sharply impaired his physical and mental
faculties, knowing he was going to operate a motor vehicle and he then operated a motor
vehicle and committed the acts set forth earlier in the complaint.
The allegations are sufficient to state a claim for an award of punitive damages. The motion
is denied.
TENTATIVE RULING # 2: DEFENDANT’S MOTION TO STRIKE THE PUNITIVE DAMAGES
ALLEGATIONS OF THE COMPLAINT IS DENIED. NO HEARING ON THIS MATTER WILL
BE HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS A
NOTICE OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS
TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY
TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE
TENTATIVE RULING IS ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR
MUST BE MADE BY TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID
NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. MATTERS IN WHICH THE
PARTIES’ TOTAL TIME ESTIMATE FOR ARGUMENT IS 15 MINUTES OR LESS WILL BE
9
Law and Motion Calendar – Department Nine (10:00 a.m.)
April 15, 2016
HEARD ON THE LAW AND MOTION CALENDAR AT 10:00 A.M. ON FRIDAY, APRIL 15,
2016 IN DEPARTMENT NINE UNLESS OTHERWISE NOTIFIED BY THE COURT. ALL
OTHER LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING
WITHIN TEN COURT DAYS OF THE ISSUANCE OF THE TENTATIVE RULING. (EL
DORADO COUNTY SUPERIOR COURT LOCAL RULES, RULE 7.10.05, et seq.)
10