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This case was last updated from Los Angeles County Superior Courts on 06/12/2021 at 23:39:09 (UTC).

CHRISTIAN PANLILIO VS JON MICHAEL COLMENARES

Case Summary

On 09/04/2020 CHRISTIAN PANLILIO filed a Personal Injury - Motor Vehicle lawsuit against JON MICHAEL COLMENARES. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3928

  • Filing Date:

    09/04/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

THOMAS D. LONG

 

Party Details

Plaintiff

PANLILIO CHRISTIAN

Defendant

COLMENARES JON MICHAEL

Attorney/Law Firm Details

Plaintiff Attorneys

SANTERAMO JOSHUA MATTHEW

PHAYAKAPONG SHANE

Defendant Attorneys

ASH PAUL V.

ASH PAUL VAUGHN

 

Court Documents

Amended Complaint - AMENDED COMPLAINT (3RD) (3RD)

3/3/2021: Amended Complaint - AMENDED COMPLAINT (3RD) (3RD)

Notice of Ruling

4/26/2021: Notice of Ruling

Answer

4/26/2021: Answer

Reply - REPLY DEFENDANT'S REPLY TO OPPOSITION TO MOTION TO STRIKE

4/8/2021: Reply - REPLY DEFENDANT'S REPLY TO OPPOSITION TO MOTION TO STRIKE

Demurrer - with Motion to Strike (CCP 430.10)

3/22/2021: Demurrer - with Motion to Strike (CCP 430.10)

Amended Complaint - AMENDED COMPLAINT (2ND)

2/16/2021: Amended Complaint - AMENDED COMPLAINT (2ND)

Notice of Posting of Jury Fees

2/23/2021: Notice of Posting of Jury Fees

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER RE AMENDING THE TENTATIVE TO 30 DAYS LEAV...)

1/13/2021: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER RE AMENDING THE TENTATIVE TO 30 DAYS LEAV...)

Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURRER)

1/13/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURRER)

Opposition - OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

12/24/2020: Opposition - OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

Association of Attorney

12/24/2020: Association of Attorney

Amended Complaint - AMENDED COMPLAINT (1ST)

11/23/2020: Amended Complaint - AMENDED COMPLAINT (1ST)

Proof of Personal Service

11/12/2020: Proof of Personal Service

Declaration - DECLARATION DECLARATION OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

11/13/2020: Declaration - DECLARATION DECLARATION OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

PI General Order

9/17/2020: PI General Order

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATE

9/17/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATE

Summons - SUMMONS ON COMPLAINT

9/4/2020: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

9/4/2020: Notice of Case Assignment - Unlimited Civil Case

14 More Documents Available

 

Docket Entries

  • 09/01/2023
  • Hearing09/01/2023 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 03/04/2022
  • Hearing03/04/2022 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/18/2022
  • Hearing02/18/2022 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/26/2021
  • DocketAnswer; Filed by Jon Michael Colmenares (Defendant)

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  • 04/26/2021
  • DocketNotice of Ruling; Filed by Jon Michael Colmenares (Defendant)

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  • 04/19/2021
  • Docketat 3:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held - Motion Granted

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  • 04/19/2021
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10))); Filed by Clerk

    Read MoreRead Less
  • 04/08/2021
  • DocketReply (Defendant's Reply to Opposition to Motion to Strike); Filed by Jon Michael Colmenares (Defendant)

    Read MoreRead Less
  • 04/05/2021
  • DocketOpposition (Plaintiff Christian Panlilio's Opposition to Defendant Jon Michael Colmenares' Motion to Strike Portions of Plaintiff's Third Amended Complaint); Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 03/22/2021
  • DocketDemurrer - with Motion to Strike (CCP 430.10) (TO STRIKE PORTIONS OF PLAINTIFF?S THIRD AMENDED COMPLAINT;); Filed by Jon Michael Colmenares (Defendant)

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12 More Docket Entries
  • 11/23/2020
  • DocketAmended Complaint ( (1st)); Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 11/13/2020
  • DocketDeclaration (Declaration of Demurring or Moving Party in Support of Automatic Extension); Filed by Jon Michael Colmenares (Defendant)

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  • 11/12/2020
  • DocketProof of Personal Service; Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 09/17/2020
  • DocketPI General Order; Filed by Clerk

    Read MoreRead Less
  • 09/17/2020
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Date); Filed by Clerk

    Read MoreRead Less
  • 09/11/2020
  • DocketCivil Case Cover Sheet; Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 09/04/2020
  • DocketComplaint; Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 09/04/2020
  • DocketCivil Case Cover Sheet; Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 09/04/2020
  • DocketSummons (on Complaint); Filed by Christian Panlilio (Plaintiff)

    Read MoreRead Less
  • 09/04/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

Case Number: 20STCV33928    Hearing Date: April 19, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTIAN PANLILIO,

Plaintiff(s),

vs.

JON MICHAEL COLMENARES, ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: 20STCV33928

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE WITHOUT LEAVE TO AMEND

Dept. 31

3:30 p.m.

April 19, 2021

 

  1. Background

    Plaintiff, Christian Panlilio (“Plaintiff”) filed this action against Defendant, Jon Michael Colmenares (“Defendant”) for damages arising from a motor vehicle accident. On 3/3/21, Plaintiff filed the operative Third Amended Complaint (“TAC”), which includes a prayer for punitive damages.

    Defendant now moves to strike the punitive damages claim. Plaintiff opposes the motion, and Defendant filed a reply.

  2. Motion to Strike

  1. Parties’ Positions

Defendant contends the TAC is devoid of any facts showing Defendant is guilty of malice, oppression or fraud. Defendant contends the TAC is vague, and while it alleges Defendant drove under the influence, this allegation is not sufficient alone to warrant punitive damages.

In opposition, Plaintiff argues the TAC sufficiently pleads the prayer for punitive damages based on malice because the TAC alleges Defendant disregarded the safety of others by operating a motor vehicle while knowingly intoxicated and driving approximately four times faster than the flow of traffic. In addition, Plaintiff contends the TAC specifically alleges violations of Vehicle Code §§ 23152(a) and (b), which further supports Plaintiff’s prayer for punitive damages.

  1. Law Governing Punitive Damages in the Context of Driving Under the Influence

Civil Code § 3294(a) states, “[i]n 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.”

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96. The Taylor court concluded that 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. "One who willfully 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." Id., at p. 897.

To properly allege punitive damages in a motor vehicle accident action, a plaintiff simply needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences." Id., at p. 896. If the essential gravamen of the complaint is that "Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby" then this is sufficient to allege punitive damages. (Id.) 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. Id.

Taylor justified imposing punitive damages upon the “deliberate” drunk driver for many reasons, including the high degree of foreseeability of injury and damage flowing from driving while intoxicated. The court says the essential allegation is that defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. The decision also discusses the grave havoc wrought by intoxicated drivers nationwide and equates the act of deliberately driving while under the influence with a conscious and deliberate disregard of the interests of others which may be described as willful or wanton. Such conduct, the court said, has traditionally been a basis for awarding punitive damages. Herrick v. Superior Court (1987) 188 Cal.App.3d 787, 790.

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] 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 nor the driver had a prior history of drunk driving incidents.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897. “[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.” Id., at p. 897.

Taylor fell short, however, of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The Court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” Id. at 892. Emphasis added.

Notably, a subsequent decision held that driving while intoxicated does not always give rise to a claim for punitive damages. “[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. The risk of injury to others from Mardian's conduct under the circumstances alleged was probable.” Dawes v. Superior Court (1980) 111 Cal.App.3d 82.

The court went on to note, “In contrast, in the case at bench, as previously noted, petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. Justice Franson aptly noted the distinction in his article on punitive damages in vehicle accident cases: Allegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection crowded with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise. This would be particularly true if the defendant had not been drinking, or, if drinking, he was not under the influence to the point where he was incapable of being aware of the situation confronting him. Under these circumstances, it reasonably might be said that the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others."

Further complicating the matter, in 1987, after all of the foregoing cases were decided, the legislature amended Civil Code §3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support imposition of punitive damages.

  1. Analysis

Here, the TAC alleges in relevant part:

Plaintiff Christian Panlilio alleges that Defendant Jon Michael Colmenares, while driving his vehicle on 3/30/2019 on 1-210 westbound Freeway (Foothill Freeway) east of Sunflower Avenue, violated California Vehicle Code sections 23152(a) and (b) by driving under the influence and being unable to operate his motor vehicle in a safe manner. Defendant had a duty to avoid driving with illegal amounts of alcohol in his system. That his breach of this duty and inability to properly operate his motor vehicle caused the subject accident. Further, that Plaintiff was injured, physically and emotionally, as a result of said accident, and Plaintiff was in a class of persons who the above named statutes were designed to protect.

Plaintiff Christian Panlilio alleges that Defendant Jon Michael Colmenares, while driving his vehicle on 3/30/2019 on 1-210 westbound Freeway (Foothill Freeway) east of Sunflower Avenue, violated California Vehicle Code sections 23152(a) and (b) by driving under the influence and being unable to operate his motor vehicle in a safe manner. In further conscious disregard for the safety of himself and others, Defendant Colmenares failed to exchange legally required information with Plaintiff after Defendant intentionally and with full volition drove approximately 4 times more the flow of traffic (which was 5-10 m.p.h) 40 m.ph. causing the crash at issue all while under the influence and being unable to operate his motor vehicle in a safe manner.

(TAC. at p. 7.)

The TAC alleges Defendant was driving at approximately 40 mph at the time of the incident, which was four times faster than the flow of traffic. However, there are no allegations to show that 40 mph, even if four times faster than the flow of traffic, equates to outrageous or extreme conduct. Further, there are no allegations showing this speed was reckless driving under the circumstances.

Similarly, although the TAC alleges Defendant violated Vehicle Code § 23152, this provision states: (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle [and] (b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. However, these allegations, like the allegations concerning Defendant’s driving under the influence, are not sufficient alone to state a claim for punitive damages. If they were, it would essentially mean anyone driving under the influence would be subject to punitive damages.

These allegations do not show that Defendant’s conduct was such that he consciously disregarded probable injury to others. They simply support the notion that Defendant drove under the influence. There are no additional allegations showing any other aggravating factors.

Defendant’s motion to strike is granted.

The burden is on Plaintiffs to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Here, while Plaintiff requests leave to amend, Plaintiff fails to provide how the TAC can be amended to successfully state a claim for punitive damages against Defendant. Further, this is Plaintiff’s Third Amended Complaint.

The motion to strike is granted with leave to amend without leave to amend.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 19th day of April, 2021

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: 20STCV33928    Hearing Date: January 13, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTIAN PANLILIO,

Plaintiff(s),

vs.

JON MICHAEL COLMENARES, ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: 20STCV33928

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE WITH LEAVE TO AMEND

Dept. 31

3:30 p.m.

January 13, 2021

 

  1. Background

    Plaintiff, Christian Panlilio (“Plaintiff”) filed this action against Defendant, Jon Michael Colmenares (“Defendant”) for damages arising from a motor vehicle accident. The complaint includes a prayer for punitive damages.

    Defendant now moves to strike the punitive damages. Plaintiff opposes the motion.

  2. Motion to Strike

  1. Parties’ Positions

Defendant contends the complaint is devoid of any facts showing Defendant is guilty of malice, oppression or fraud. Defendant contends the complaint is vague, and while it alleges Defendant drove under the influence, this allegation is not sufficient alone to warrant punitive damages.

In opposition, Plaintiff argues the complaint sufficiently pleads the prayer for punitive damages because the complaint alleges Defendant disregarded the safety of others by operating a motor vehicle while knowingly intoxicated. In addition, Plaintiff contends the complaint specifically alleges violations of Vehicle Code §§ 23152(a) and (b), which further supports Plaintiff’s prayer for punitive damages.

  1. Law Governing Punitive Damages in the Context of Driving Under the Influence

Civil Code § 3294(a) states, “[i]n 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.”

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96. The Taylor court concluded that 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. "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." Id., at p. 897.

To properly allege punitive damages in a motor vehicle accident action, a plaintiff simply needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences." Id., at p. 896. If the essential gravamen of the complaint is that "Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby" then this is sufficient to allege punitive damages. (Id.) 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. Id.

Taylor justified imposing punitive damages upon the “deliberate” drunk driver for many reasons, including the high degree of foreseeability of injury and damage flowing from driving while intoxicated. The court says the essential allegation is that defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. The decision also discusses the grave havoc wrought by intoxicated drivers nationwide and equates the act of deliberately driving while under the influence with a conscious and deliberate disregard of the interests of others which may be described as willful or wanton. Such conduct, the court said, has traditionally been a basis for awarding punitive damages. Herrick v. Superior Court (1987) 188 Cal.App.3d 787, 790.

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] 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 nor the driver had a prior history of drunk driving incidents.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897. “[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.” Id., at p. 897.

Taylor fell short, however, of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The Court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” Id. at 892. Emphasis added.

Notably, a subsequent decision held that driving while intoxicated does not always give rise to a claim for punitive damages. “[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. The risk of injury to others from Mardian's conduct under the circumstances alleged was probable.” Dawes v. Superior Court (1980) 111 Cal.App.3d 82.

The court went on to note, “In contrast, in the case at bench, as previously noted, petitioners pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. Justice Franson aptly noted the distinction in his article on punitive damages in vehicle accident cases: Allegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection crowded with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise. This would be particularly true if the defendant had not been drinking, or, if drinking, he was not under the influence to the point where he was incapable of being aware of the situation confronting him. Under these circumstances, it reasonably might be said that the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others."

Further complicating the matter, in 1987, after all of the foregoing cases were decided, the legislature amended Civil Code §3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support imposition of punitive damages.

  1. Analysis

Here, the complaint alleges in relevant part:

Plaintiff Panlilio was operating a 2008 Lexus IS250 within the #4 travel lane at approximately 5 m.p.h. Behind him and in the #5 lane of travel, third-party driver Marissa Carranza was operating a 2018 Mazda CX-3 at approximately 10 m.p.h. Defendant Colmenares was operating a 2017 Jeep Cherokee in the #5 travel lane behind Carranza at approximately 40 m.p.h. As the parties approached the Sunflower Avenue exit, the #5 lane merged into the #4 lane. Defendant Colmenares failed to use due care, followed too closely, and failed to reduce speed, impacting the rear of the Carranza vehicle. The force of that impact pushed the Carranza vehicle into Plaintiff Panlilio's vehicle…

(Compl. at p. 5.) Furthermore, in the Exemplary Damages Attachment, the complaint alleges Defendant violated Vehicle Code §§ 23152(a) and (b) by driving under the influence of alcohol and being unable to operate his car. (Ibid. at p. 7.)

While the complaint alleges Defendant was driving at approximately 40 mph at the time of the incident, there are no allegations to show that 40 mph at the time of the incident equates to outrageous or extreme conduct. Nor are there any allegations showing this speed was reckless driving under the circumstances.

Similarly, although the complaint alleges Defendant violated Vehicle Code § 23152, this provision states: (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle [and] (b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. However, these allegations, like the allegations concerning Defendant’s riving under the influence, are not sufficient alone to state a claim for punitive damages. If they were, it would essentially mean anyone driving under the influence would be subject to punitive damages.

These allegations do not show that Defendant’s conduct was such that he consciously disregarded probable injury to others. They simply support the notion that Defendant drove under the influence. There are no additional allegations showing any other aggravating factors.

Defendant’s motion to strike is granted.

The burden is on Plaintiffs to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiffs request leave to amend to include additional factual allegations. Given the complaint’s allegations concerning Defendant driving under the influence at 40 mph at the time of the incident, the court thus finds there is a reasonable probability the complaint can be amended to state a claim for punitive damages.

The motion to strike is granted with 20 days’ leave to amend.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 13th day of January, 2021

Hon. Thomas D. Long

Judge of the Superior Court

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