Lindsay Marks Orsini, et al. v. Scott Woollard, et al

Case Number

24CV00596

Case Type

Hearing Date / Time

Mon, 08/12/2024 - 10:00

Nature of Proceedings

Motion to Strike Prayer For Punitive And Exemplary Damages From Plaintiffs’ First Amended Complaint

Tentative Ruling

Lindsay Marks Orsini, et al. v. Scott Woollard, et al.

Case No. 24CV00596         

Hearing Date: August 12, 2024                                

HEARING:              Motion to Strike Prayer For Punitive And Exemplary Damages From Plaintiffs’ First Amended Complaint

ATTORNEYS:        For Plaintiffs Lindsay Marks Orsini and Christian Orsini: Ramin Kermani-Nejad, Mohamad Ahmad, Hani Ganji, Kermani LLP

                                    For Defendants Brooke Woollard and Scott Woollard: Nolan S. Armstrong, Caitlyn M. Harris, McNamara, Ambacher, Wheeler, Hirsig &Gray LLP

                                   

TENTATIVE RULING:

The motion of defendants to strike the prayer for punitive and exemplary damages from plaintiffs’ first amended complaint is granted without leave to amend as to the claim alleged against defendant Scott Woollard, and with leave to amend as to the claim alleged against defendant Brooke Woollard. The prayer for punitive damages alleged in “Prayer” paragraph 3 of plaintiffs’ first amended complaint, which appears on page 7, line 3 of the first amended complaint, is ordered stricken. Plaintiffs shall file and serve their second amended complaint on or before August 22, 2024.

Background:

Plaintiffs Lindsay Marks Orsini (Lindsay) and Christian Orsini (Christian) (collectively, Orsini) filed their original complaint in this matter on February 2, 2024, alleging three causes of action against defendants Brooke Woollard (Brooke) and Scott Woollard (Scott) (collectively, Woollard): (1) negligence; (2) negligent entrustment; and (3) loss of consortium. (Note: Due to common surnames, the court will refer to the parties by their first names. No disrespect is intended.) As alleged in the complaint, on March 7, 2022, while speeding in an SUV owned by Scott and talking on a cell phone, Brooke rear-ended Lindsay causing Lindsay to suffer serious injuries from which she will never fully recuperate.

Woollard filed an answer to the complaint on March 12, 2024, generally denying its allegations and asserting six affirmative defenses.

Also on March 12, 2024, Woollard filed a motion to strike the prayer for punitive and exemplary damages asserted in the complaint on the grounds that Orsini failed to allege facts sufficient to demonstrate malice or oppression. The motion was opposed by Orsini.

On April 29, 2024, the Court issued its Minute Order (the Minute Order) granting the motion to strike filed by Woollard on March 12, 2024, and ordering Orsini to file and serve a first amended complaint on or before May 10, 2024.

On May 10, 2024, Orsini filed a first amended complaint (the FAC) alleging the same three causes of action described above against Woollard. As alleged in the FAC:

On March 7, 2022, Brooke slammed into the back of Lindsay’s car. (FAC, ¶ 10.) At the time of the collision, Brooke was travelling in a large and heavy SUV at nearly double the speed limit in a 25 mile per hour residential neighborhood near a park where children play. (Ibid.) Brooke had driven through this residential neighborhood countless times and knew that it was adjacent to park which created a risk of children running into the streets. (Id. at ¶ 12.) Brooke also knew that it was illegal to use a cell phone while driving because doing is distracting and can lead to crashes. (Ibid.) Despite Brooke’s knowledge of these matters, Brooke was looking down at and distracted by her cell phone. (Id. at ¶¶ 10-12.) Brooke routinely uses her cell phone while driving and routinely speeds through the residential neighborhood where little children play. (Id. at¶ 13.)

On June 10, 2024, Woollard filed an answer to the FAC generally denying its allegations and asserting six affirmative defenses.

Also on June 10, 2024, Woollard filed a motion for an order striking the prayer for punitive and exemplary damages from the FAC, which the Court notes appears in paragraph 3 of the Prayer. (See FAC at p. 7.) The motion is opposed by Orsini.

Analysis:

“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).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Woollard contends that the allegations of the FAC are insufficient to support an award of punitive damages against Scott. Woollard further contends that the allegations of the FAC are insufficient to establish or infer malice by Brooke and improperly rely on conclusory assertions of Brooke’s knowledge of matters relating to the vehicle Brooke was driving, the residential neighborhood where the collision occurred, and whether it was illegal or dangerous to use a cell phone while driving. Woolard further contends that allegations regarding Brooke’s purportedly routine speeding and use of a cell phone while driving or speeding are also conclusory and insufficient to support an award of punitive damages.

In their opposition to the motion, Orsini contends that because the allegations of the FAC show that Brooke knew that speeding in the location of the subject collision would probably result in injuries to others and knew that it was dangerous to use a cell phone while driving yet chose to routinely speed down the subject street while distracted by her cell phone, they are sufficient to allege that Brooke acted in conscious disregard for the safety of others.

Similar to the original complaint, the allegations of the FAC indicate that Orsini seeks to impose on Woollard liability for punitive damages based on purported malice or oppression by Woollard rather than conduct constituting fraud. Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. “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.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

The only allegations of the FAC that ostensibly relate to Orsini’s claim for punitive damages against Scott suffer from the same deficiencies discussed in the Minute Order with respect to the original complaint. As in the original complaint, Orsini seeks to impose liability for punitive damages against Scott based solely on the fact that Scott owned and permitted Brooke to drive the SUV. (FAC, ¶¶ 23-25.) Apart from alleging in a conclusory manner that Scott knew or should have known that Brooke was incompetent or unfit to drive the vehicle, there are no allegations sufficient to show that by permitting Brooke to drive the SUV, Scott engaged in despicable conduct sufficient to support an award of punitive damages under Civil Code section 3294.

Further, Orsini has not alleged facts demonstrating that any conduct by Scott was willful or in conscious disregard for the rights or safety of others. Moreover, in the opposition to the motion, Orsini fails to offer any reasoned argument demonstrating the manner in which the allegations of the FAC cure the deficiencies described in the Minute Order with respect to the punitive damages claim alleged against Scott. Therefore, because the allegations of the FAC fail to cure these deficiencies by including facts which, if proven, would support a claim for punitive damages against Scott, the Court will grant the motion as to Scott.

Regarding the claim for punitive damages alleged against Brooke, whether Orsini seeks to impose liability for punitive damages against Brooke based on malice or oppression, Orsini must assert facts which, if proven, would be sufficient to show that Brooke’s conduct was despicable. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (College Hospital) [noting that “malice” requires more than a willful or conscious disregard of other’s rights].)“Despicable conduct” for purposes of an award of punitive damages means “conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ … [Citation.] ” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872 [also noting that such conduct has the character of outrage associated with a crime].) “ ‘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, citations omitted.)

In addition, and relevant here, “cases involving 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 [citations], or the defendant took action to protect or minimize the injury to the plaintiff. [Citations.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212 (Lackner).)

For present purposes, the Court assumes the truth of allegations which show that Brooke was driving a large and heavy SUV at the time of the collision, that Brooke was travelling at nearly double the speed limit on a residential street where children played at a park, that Brooke routinely uses her cell phone and speeds while driving, that Brooke had driven through the residential neighborhood countless times, and that Brooke was looking down at her cell phone when she collided into the back of Lindsay’s car. (Clauson, supra, 67 Cal.App.4th at p. 1255.)

Generally, motor vehicle accidents involve to some extent the inattention, distraction, or negligence of one or more involved parties. Though the risk of injury to others from speeding, whether at double the speed limit or on a residential street where children are at play, is certainly foreseeable, it is not necessarily probable in all circumstances. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89 (Dawes).) The same reasoning applies with respect to the use of a cell phone while driving. Though Orsini alleges that Brooke was both speeding and using her cell phone when the collision occurred, these allegations, without more, do not change the analysis. Though the allegations of the FAC may be sufficient to show that Brooke may have acted with conscious disregard for the probable consequences of her conduct because Brooke was looking at her cell phone while speeding and was not watching out for other cars such as Lindsay’s vehicle, the allegations of the FAC are insufficient as a matter of law to show that Brooke’s conduct was despicable, that Brooke intended to hit Lindsay’s vehicle, or that Brooke acted with base or evil intent notwithstanding whether Brooke knew that using a cell phone under the conditions alleged in the FAC could create a risk of injury to others. (Lackner, supra, 135 Cal.App.4th at p. 1213.) In addition, Orsini fails to show why the relative weight or size of the vehicle driven by Brooke as alleged in the FAC is of consequence to the analysis.

Even if the allegations of the FAC described above were proven at trial, they do not show, as a matter of law, that Brooke acted in an evil, vile, base, or despicable manner. Rather, the allegations demonstrate, at most, a negligent or reckless decision by Brooke to speed through a residential neighborhood while driving a large vehicle and using or looking at a cell phone. Even if the allegations of the FAC, if proven, are sufficient to show gross negligence by Brooke, “proof of … even gross negligence ... is insufficient to warrant an award of punitive damages.” (Dawes, supra, 111 Cal.App.3d at p. 87.)

Orsini relies on the decision in Taylor v. Superior Court (1979) 24 Cal.3d 890 (Taylor), to support their contention that the allegations of the FAC are sufficient to show that, by routinely choosing to speed through a residential neighborhood while distracted by the use of a cell phone, Brooke acted with a conscious disregard of the rights and safety of others. The complaint filed by plaintiff in Taylor arose from an automobile accident in which the car driven by defendant collided with plaintiff’s car causing serious injuries. (Taylor, supra, 24 Cal.3d at p. 893.) Plaintiff alleged that defendant, an alcoholic, was consuming an alcoholic beverage and under its influence when the collision occurred. (Ibid.) The complaint also alleged the existence of previous accidents caused by defendant while driving under the influence of alcohol, defendant’s prior arrests and convictions for drunk driving, and that at the time of the accident at issue, defendant was facing additional charges for criminal drunk driving. (Ibid).

In considering whether punitive damages were recoverable based on the allegations of the complaint, the court in Taylor held that “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 … ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’ [Citation.]” (Taylor, supra, 24 Cal.3d at p. 899.) The court further noted that “one who wilfully disobeys traffic signals or speed limit laws arguably possesses such a state of mind and culpability. That case is not before us and we express no opinion on it ….” (Ibid.)

The allegations of the FAC are not analogous to those examined by the Supreme Court of California in Taylor. For example, Orsini does not allege that Brooke was under the influence of an intoxicating substance while she was speeding through a residential neighborhood and using her cell phone. Furthermore, though Orsini alleges that Brooke routinely speeds while using her cell phone and with the knowledge that her conduct is illegal, Orsini does not allege facts showing that Brooke caused other serious accidents based on the same conduct or was arrested, subject to criminal prosecution, or convicted for the same conduct at any period of time. Therefore, the allegations of the FAC which describe “routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” (Taylor, supra, 24 Cal.3d at p. 900.) Moreover, “despicable conduct was not a requirement when Taylor was decided.” (Lackner, supra, 135 Cal.App.4th at p. 1212.)

For the same reasons discussed above, Orsini’s reliance on the decision SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902 to support their contention that the allegations of the FAC are sufficient to show that Brooke acted with a conscious disregard of the probable consequences of her conduct is also misplaced. (See College Hospital, supra, 8 Cal.4th at p. 725 [noting that the addition of the word “willful” and reference to “despicable” conduct by the Legislature under the 1987 Reform Act was not surplusage but “seems to represent a new substantive limitation on punitive damage awards”].) As further discussed above, the allegations of the FAC must be sufficient to show despicable conduct by Brooke.
 

Orsini also contends that the motion of Woollard should be denied on procedural grounds because the notice fails to quote in full the portion of the FAC which Woollard seeks to strike. (See Cal. Rules of Court, rule 3.1322(a).) In the notice of the motion, Woollard seeks to strike the “prayer” for punitive damages. (Notice at p. 1, l. 27 – p. 2, l. 2.) As noted above, the prayer for punitive damages is alleged in a single paragraph. Therefore, any failure by Woollard to quote the portion sought to be stricken is not a sufficient procedural ground on which the Court may deny the motion. (Cal. Rules of Court, rule 3.1322(a) [setting forth exception “where the motion is to strike an entire paragraph”].)

For all reasons discussed above, the allegations of the FAC are insufficient to demonstrate that Brooke engaged in despicable or willful conduct sufficient to support an award of punitive damages even if Orsini were to prove these allegations at trial. Therefore, the Court will grant the motion as to the claim for punitive damages claim alleged against Brooke.

Orsini requests leave to amend the FAC. The standards for granting leave to amend when a motion to strike is granted are analogous to an order sustaining a demurrer. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) Orsini bears the burden to show a reasonable possibility that the defects addressed herein can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Orsini does not seek leave to amend as to the punitive damages claim against Scott. In addition, Orsini offers no reasoned legal or factual argument demonstrating in what manner they can amend the FAC with respect to the punitive damages alleged against Scott or how the amendment will change its legal effect. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) As Orsini has asserted only an abstract right to amend the FAC as to Scott, and as the FAC on its face shows that there exists no reasonable possibility that Orsini can allege facts sufficient to support an award of punitive damages against Scott also considering that Orsini was previously granted leave to amend these allegations and did not do so, the Court will deny leave to amend the FAC with respect to the punitive damages claim alleged against Scott. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44 (Rakestraw); Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240-1241.)

With respect to the punitive damages claim alleged against Brooke, Orsini contends that that they are “informed and believe” that Brooke was also actively engaged in a TikTok/Instagram video with her passenger. It is unclear from this allegation whether the proposed amendment relates to Brooke using her cell phone while driving, or relates to qualitatively different conduct. To the extent the proposed allegations relate to Brooke’s use of her cell phone while driving, they do not change the Court’s analysis. To the extent Orsini is referring to conduct distinctly different from using a cell phone, the proposed allegation is insufficiently factual or specific to permit the Court to determine whether there exists a reasonable possibility that it will cure the defects discussed herein. (See, e.g., Rakestraw, supra, 81 Cal.App.4th at pp. 43-44 [to meet its burden to demonstrate a reasonable possibility of curing pleading defects, the plaintiff must set for allegations that are “factual and specific, not vague or conclusionary”].)

Though the amendment proposed by Orsini is not sufficiently specific and while it does not appear that the FAC can be truthfully amended to allege facts sufficient to show an entitlement to punitive damages against Brooke, at this stage of the proceedings, the Court will again grant leave to amend to permit Orsini another opportunity to state their best case with respect to the claim for punitive damages against Brooke. Orsini may amend the FAC only as authorized herein. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)