On 06/11/2018 a Personal Injury - Motor Vehicle case was filed by KIMBERLY NICOLE NOVAK against LAJWANTI CHOUDHURY in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MARC D. GROSS
JON R. TAKASUGI
NOVAK KIMBERLY NICOLE
WOLF AARON BENJAMIN
RABINEAU LARRY ESQ.
LINDNER JUDITH S. ESQ.
GRANDY JAMES LAWTON
OGUNNUBI MELISSA ANN
11/1/2019: Motion for Summary Adjudication
9/24/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO CONSOLIDATE)
9/24/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO CONSOLIDATE) OF 09/24/2019
9/24/2019: Order - ORDER [PROPOSED] ORDER CONSOLIDATING CASES
9/26/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
9/20/2019: Stipulation - No Order - STIPULATION - NO ORDER JOINT STIPULATION TO CONSOLIDATE CASES
8/5/2019: Substitution of Attorney
8/8/2019: Motion to Consolidate
8/9/2019: Notice of Related Case
3/25/2019: Order - ORDER BY THE COURT CONTINUING MOTION
3/12/2019: Opposition - OPPOSITION MOTION TO COMPEL DEPOSITION OF DEFENDANT
9/27/2018: Minute Order - Minute order entered: 2018-09-27 00:00:00
11/27/2018: Order - Order By the Court denying the motion to strike punitive damages
11/26/2018: Notice - Notice of Non-Opposition to Defendants Motion to Strike
8/1/2018: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT;AND ETC.
6/28/2018: PROOF OF SERVICE SUMMONS -
6/11/2018: SUMMONS -
Hearing06/11/2021 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE DismissalRead MoreRead Less
Hearing02/14/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing01/31/2020 at 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing01/17/2020 at 13:30 PM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary AdjudicationRead MoreRead Less
Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
DocketSeparate Statement; Filed by Lajwanti Choudhury (Defendant)Read MoreRead Less
DocketRequest for Judicial Notice; Filed by Lajwanti Choudhury (Defendant)Read MoreRead Less
DocketNotice of Lodging (Notice of Lodgement in Support of Motion for Summary Adjudication); Filed by Lajwanti Choudhury (Defendant)Read MoreRead Less
DocketMotion for Summary Adjudication; Filed by Lajwanti Choudhury (Defendant)Read MoreRead Less
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Lajwanti Choudhury (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 3; Ex-Parte Proceedings (Exparte proceeding; Denied) -Read MoreRead Less
DocketMinute order entered: 2018-09-27 00:00:00; Filed by ClerkRead MoreRead Less
DocketEx-Parte Application; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketNOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT;AND ETC.Read MoreRead Less
DocketMotion to Strike; Filed by Lajwanti Choudhury (Defendant)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Kimberly Nicole Novak (Plaintiff); Aaron Benjamin Wolf (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
DocketComplaint; Filed by Kimberly Nicole Novak (Plaintiff); Aaron Benjamin Wolf (Plaintiff)Read MoreRead Less
Case Number: BC709523 Hearing Date: March 13, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
KIMBERLY NICOLE NOVAK,
LAJWANTI CHOUDHURY, ET AL.,
CASE NO: BC709523
[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY ADJUDICATION
March 17, 2020
Plaintiffs, Kimberly Nicole Novak and Aaron Benjamin Wolf filed this action against Defendant, Lajwanti Choudhury for damages arising out of an automobile accident. Plaintiffs’ original complaint included a prayer for punitive damages, and Defendant moved to strike the prayer and related allegations. Prior to the hearing, Plaintiffs filed their operative First Amended Complaint.
The FAC also includes a prayer for punitive damages, and on 11/27/18, the Court heard Defendant’s motion to strike the prayer and related allegations. The Court denied the motion. The Court noted that, pursuant to Taylor and Dawes, a plaintiff must allege more than “mere driving under the influence” in order to obtain punitive damages. The Court found Plaintiff alleged speeding, texting, drinking for hours to three times the legal limit, and driving on a crowded thoroughfare in her FAC, and these factors were sufficient to support a prayer for punitive damages under controlling law.
Motion for Summary Adjudication
History of Motion
The Court was originally scheduled to hear this motion on 1/17/20. The Court continued the hearing for two reasons. First, the Court was not in receipt of Defendant’s reply papers. Second, the Court found Plaintiff adequately supported her request for a continuance of the hearing on the motion in order to conduct further discovery.
Request for Judicial Notice
Defendant filed a request for judicial notice of the criminal court records relating to Defendant, as well as other matters that cannot reasonably be in dispute. The RJN is granted.
Law Governing Imposition of Punitive Damages in Context of Driving Under the Influence
There is a dearth of authority concerning whether punitive damages, in the driving under the influence context, should be summarily adjudicated. There is also a dearth of authority concerning what, if any, evidence at trial is sufficient to support imposition of such damages. The authority on this issue has mostly come from the pleading stage, and there in not a substantial body of law in this regard. The two cases that consider the issue most directly are Taylor and Dawes, which will be discussed below.
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.
Burdens on Summary Judgment
Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,
[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)
Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.
Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
Moving Burden on Summary Adjudication
Defendant moves for summary adjudication, contending there are no aggravating factors that support imposition of punitive damages in this case. She contends she was not using her phone at the time of the accident, the area she was traveling in was “very quiet,” with minimal pedestrian or vehicle traffic in the area, she was driving at or near the speed limit, and this was her first DUI offense.
As noted above, the Court determined, in connection with the motion to strike, that Plaintiffs’ allegations concerning use of a cell phone, very busy traffic area, speeding, and a high volume of alcohol were the aggravating factors that would support imposition of punitive damages. Defendant’s moving papers negate the first three aggravating factors, leaving only the high volume of alcohol as an aggravating factor. Under Dawes and Taylor, a high volume of alcohol, standing alone, does not appear to support imposition of punitive damages. This is especially true where, as here, this is Defendant’s first DUI offense.
The Court finds Defendant met her moving burden to show she is entitled to judgment as a matter of law on Plaintiffs’ claim for punitive damages.
The burden shifts to Plaintiffs to raise a triable issue of material fact. Plaintiffs submitted their original opposition on 12/30/19. Plaintiffs also submitted a supplemental opposition on 1/14/20, as permitted by the prior order continuing the hearing on the motion.
Plaintiffs, in their supplemental opposition papers, contend the evidence shows that (a) Defendant’s BAC, as confirmed by a blood alcohol test, was .22, (b) Defendant knew she was too drunk to drive, considered taking an Uber, then changed her mind and drove anyway, (c) the area where Defendant was driving was lined with businesses, bars, restaurants, where there was at least one other vehicle and pedestrians, and (d) Defendant was charged with, and convicted of, felony DUI.
Defendant, in reply, contends the foregoing does not give rise to a triable issue of material fact concerning punitive damages. Defendant correctly notes that Plaintiffs appear to have abandoned their allegations that Defendant was using her phone while driving or that she was speeding at the time of the accident. Defendant contends the evidence does not show the area was “crowded,” and contends any person can consider an Uber, and considering an Uber does not support imposition of punitive damages.
Plaintiffs’ argument concerning Uber is based on Defendant’s deposition testimony, pages 43-44, wherein Defendant testified that she and her friend drank more than they should have, discussed taking an Uber, then drank more, and ultimately drove instead of taking an Uber. Defendant testified repeatedly that she does not remember why they ultimately drove. Essentially, this testimony shows that Defendant was, at one point, sober enough to realize she needed to take an Uber, but then she became more intoxicated and loss her ability to make this rational decision. This testimony brings up the portion of Dawes, supra, wherein the court held, “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.” Dawes, at 82.
In this case, it appears Defendant was too intoxicated to make a good decision, which tends to show LACK OF malice, not extreme malice, per Dawes.
Plaintiffs’ other argument is that the area was extremely crowded. Plaintiffs show, however, only that there was at least one other car on the road and that there were three pedestrians in the area. See separate statement, fact 7. One car and three pedestrians does not raise a triable issue of material fact about an area being extremely crowded.
Defendant met her initial burden to show the aggravating factors pled by Plaintiffs in their complaint were not present in connection with the accident. Plaintiffs failed to raise a triable issue of material fact concerning aggravating factors. The motion for summary adjudication of the claim for punitive damages is therefore granted.
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com 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.
Dated this 17th day of March, 2020
Hon. Thomas D. Long
Judge of the Superior Court
Case Number: BC709523 Hearing Date: January 17, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
KIMBERLY NICOLE NOVAK,
LAJWANTI CHOUDHURY, ET AL.,
CASE NO: BC709523
[TENTATIVE] ORDER CONTINUING HEARING ON MOTION FOR SUMMARY JUDGMENT
January 17, 2020
The Court is in receipt of (a) Defendant’s moving papers, filed on 11/01/19, (b) Plaintiff’s opposition papers, filed on 12/30/19, and (c) Plaintiff’s supplemental declarations, filed on 1/14/20. Plaintiff’s supplemental declarations make clear that Defendant filed reply papers. The Court is not, however, in possession of reply papers, whether in online or hard copy format. The Court wishes to consider all papers filed in connection with this motion, and is therefore continuing the hearing on the motion.
Additionally, the Court notes that Plaintiff’s supplemental attorney declaration indicates that Plaintiff seeks a continuance of the hearing to permit Plaintiff to provide evidence in compliance with Evidence Code §1271. The Court is inclined to resolve all of the issues related to this motion at one time, and therefore also continues the hearing on the motion to permit Plaintiff to do so.
The Court notes that trial is not scheduled until 6/02/20, and therefore there is no urgency to hearing this motion. The Court continues the motion for two months, to Tuesday, 3/17/20 at 1:30 p.m. in Department 3. Defendant must re-file its reply papers forthwith. Plaintiff must file any supplemental opposition and evidence on or before Tuesday, 2/25/20. Defendant must file any supplemental reply on or before Friday, 3/06/20.
The Court’s First Amended General Order Re: Mandatory Electronic Filing for Civil, dated 5/03/19, ¶9(b)(vi, requires parties to lodge tabbed courtesy copies of all papers in support of or opposition to a summary judgment motion. The Court received a courtesy copy of Defendant’s notice of lodgment and all of Plaintiff’s opposition papers. The Court did not receive any other courtesy copies. The parties must provide courtesy copies of all documents, in compliance with the General Order, on or before Friday, 3/06/20. Courtesy copies that have been previously submitted need not be re-submitted.
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.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.