Damon Richardson, et al. v. Thomas Bolton Ayer

Case Number

25CV04832

Case Type

Hearing Date / Time

Wed, 12/03/2025 - 10:00

Nature of Proceedings

1) Defendant Thomas Bolton Ayer’s Demurrer to Plaintiff’s Complaint; 2) Defendant Thomas Bolton Ayer’s Motion to Strike Portions of Plaintiff’s Complaint

Tentative Ruling

For Plaintiffs Damon Richardson and Thuy-Trang Chau: Anthony C. Kastenek, Philip Alexander, Harris Personal Injury Lawyers Inc.

For Defendant Thomas Bolton Ayer: James M. Baratta, Kathryn E. Keegan, Grant Genovese & Baratta LLP

                      

RULING

For the reasons set forth below:

1. Defendant Thomas Bolton Ayer’s demurrer to Plaintiff’s complaint is overruled.
2. Defendant Thomas Bolton Ayer’s motion to strike portions of Plaintiff’s complaint is denied.
3. Defendant Thomas Bolton Ayer shall file and serve his answer to the complaint no later than December 17, 2025.

Background

This action commenced on August 5, 2025, by the filing of the complaint by Plaintiffs Damon Richardson and Thuy-Trang Chau (collectively “Plaintiffs”) against Defendant Thomas Bolton Ayer. The complaint contains a single cause of action for negligence.

As alleged in the complaint:

On January 18, 2025, Ayer operated his vehicle in a negligent manner that caused a collision between Ayer’s vehicle and Plaintiffs, which caused serious injuries to Plaintiffs. (Compl., ¶ 13.)

At the time of the collision, Ayer was operating his vehicle while under the influence of alcohol, drugs, or the combined influence of alcohol and drugs, and drove through an intersection hitting Plaintiffs who were pedestrians legally crossing the roadway. (Compl., ¶ 32.)

On the date of the collision, Ayer “consumed drugs and/or alcohol to the point of physical and mental impairment and legal intoxication, and knew he would drive a motor vehicle, knowing full well that the drinking of alcoholic beverages or use of drugs would occur prior to any attempt to drive their motor vehicle.” (Compl., ¶ 33.)

“Upon information and belief, Defendant THOMAS BOLTON AYER consumed large quantities of drugs and/or alcohol before driving. Defendant THOMAS BOLTON AYER knew that this quantity of drugs and/or alcohol would substantially impair his ability to drive, and chose to consume willfully, wantonly, and knowingly said excessive amounts of alcoholic beverages or drugs, knowing that he would be required to drive himself without the assistance of any other persons. While consuming said drugs and/or alcohol, Defendant THOMAS BOLTON AYER knew that he would then immediately go to his automobile and operate said vehicle on said roadway.” (Compl., ¶ 34.)

“Upon information and belief, Defendant THOMAS BOLTON AYER knew that the consumption of drugs and alcoholic beverages can and does cause an increased risk of accidents, as opposed to not ingesting drugs and/or alcoholic beverages prior to driving. Defendant THOMAS BOLTON AYER knew the amount of alcohol and/or drugs that he consumed and despite knowing of the dangers to the driving public, decided to drive his automobile after the consumption of drugs and/or alcohol. Defendant THOMAS BOLTON AYER was charged with a crime for driving under the influence with a BAC of .08% or greater and with an additional violation of failure to yield to pedestrians in a marked crosswalk.” (Compl., ¶ 35.)

“Defendant THOMAS BOLTON AYER drove their motor vehicle, failing to yield to pedestrians in a marked crosswalk on the roadway and having ingested a large amount of drugs and/or alcohol knew, or should have known, of the probable seriousness of injury to others, which would result from his driving, and thus demonstrated a conscious disregard for the rights and safeties of others, thus constituting despicable conduct and malice.” (Compl., ¶ 37.)

“Upon information and belief, Defendant THOMAS BOLTON AYER decided to consume drugs and/or alcoholic beverages within hours of driving their motor vehicle and knew at the establishment or place where he did in fact consume the drugs and/or alcoholic beverages that they did intend to drive DEFENDANTS’ automobile on the roadway, knowing the dangerousness of driving while intoxicated. Defendant THOMAS BOLTON AYER willfully and deliberately engaged in despicable conduct to drive DEFENDANTS’ automobile knowing the danger to the public which in fact was a cause of the collision heretofore mentioned.” (Compl., ¶ 38.)

“Defendant THOMAS BOLTON AYER drove their motor vehicle, failing to yield to pedestrians in a marked crosswalk on the roadway and consumed the alcohol and/or drugs before the subject collision, said actions and consumption was willful and voluntary and with full knowledge that after consumption, their driving abilities would be substantially impaired. Knowing these facts, Defendant THOMAS BOLTON AYER did, willfully and voluntarily, consume sufficient quantities of alcohol and/or drugs with knowledge that they would thereafter be operating a motor vehicle. That due to their state of intoxication, Defendant THOMAS BOLTON AYER could not properly operate a motor vehicle, and as a result, crashed into the Plaintiffs, causing substantial injury to Plaintiffs.” (Compl., ¶ 39.)

Defendant’s blood alcohol content was much higher than the legal limit at the time of the collision. (Compl., ¶ 40.)

Among other damages, Plaintiffs seek punitive damages.

Defendants demur to the complaint, on the grounds that the complaint fails to state facts sufficient to constitute a cause of action, arguing that punitive damages are a remedy rather than a cause of action.

Defendants also move to strike each of the paragraphs under the heading of “allegations re punitive damages,” and the prayer for relief for punitive damages, arguing that they are “irrelevant, improper, and not drawn in conformity with the law of the State of California.”

Plaintiffs oppose the demurrer and the motion to strike.

Analysis

            Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The Court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“[A] Court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the Plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

After setting forth the general authority for demurrer, Defendant’s entire argument is contained in the following paragraph:

“Here, Plaintiffs improperly assert separate and distinct allegations regarding punitive damages. Because punitive damages are a remedy and not a standalone cause of action, this claim fails as a matter of law. Accordingly, Plaintiffs’ Allegations re Punitive Damages should be dismissed without leave to amend.” (Demurrer, p. 6, ll. 11-14.)

Defendant’s argument is completely void of merit. As noted above, and as demonstrated by the compliant itself, the complaint alleges a single cause of action for negligence. This is reflected in both the caption and in the body of the complaint. The paragraphs that Defendant demurs to is clearly, in all caps and bold, labeled as “ALLEGATIONS.” (Compl., p. 4, l. 11.)

As it could not be clearer that the allegations re punitive damages are not intended to be a separate cause of action, the demurrer will be overruled.

            Motion to Strike

“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Defendant’s first argument is that punitive damages are a remedy and not a standalone cause of action. This meritless argument was addressed above, in conjunction with the demurrer, and is rejected.

The remainder of Defendant’s arguments appear to be that the complaint contains insufficient facts to support a claim for punitive damages.

The right to punitive damages is strictly statutory. “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.” (Civ. Code, § 3294, subd. (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.” (Id. at subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. at subd. (c)(2).) “ ‘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.” (Id. at subd. (c)(3).)

“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.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

“In California, malice is the basis for assessing punitive damages for nonintentional conduct; that is, acts performed without intent to harm. [Citations.] Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result. [Citations.]” (Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374, 381.)

Defendant argues that the complaint “does not allege what specific acts were committed, who committee[d] them, or how they reflect a conscious disregard of Plaintiffs’ safety.” (MTS, p. 9, l. 28 – p. 10. l. 1.) This argument is objectively false. The complaint, in several places, describes exactly what acts were committed, when they were committed, that Defendant committed them, and how those actions constitute a conscious disregard of the safety of others including Plaintiffs.

Defendant also argues: “There are no factual allegations regarding the quantity of alcohol or substances consumed, how Defendant knew he was impaired, whether he had a history of similar conduct, or what he observed or intended at the time of the incident.” Again, this argument, to the extent that Plaintiffs would have knowledge of these facts prior to conducting discovery, is objectively false.

“[C]certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud. Less specificity is required when “ ‘it appears from the nature of the allegations that the Defendant must necessarily possess full information concerning the facts of the controversy,’ ” [citation]; “ ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party . . ..’ ” [Citation.]” (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217.) Certainly, it would be Defendant that possesses information regarding his history, what he observed, and what he intended.

“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 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.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 897.)

Plaintiffs have pled more that sufficient facts supporting their request for punitive damages to overcome Defendant’s motion to strike. The motion to strike will be denied.