Motion to Strike
17 Romero vs. Herrera Motion to Strike (re First Amended Complaint)
The court DENIES Defendant JENESSA ANGELINE HERRERA’s motion to strike the claim for exemplar/punitive damages of the First Amended Complaint (FAC) filed by Plaintiffs BERNABE ROMERO, MARCELA SANCHEZ, YOSELIN ROMERO, and DAYANA ROMERO.
To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) The statute defines “malice” to mean “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(c)(1).)
Conduct carried on with a willful and conscious disregard of the rights or safety of others but that is not despicable will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as “having the character of outrage frequently associated with crime.” (Id.)
A complaint must allege specific factual allegations to support a request for punitive damages. (See, e.g., Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [allegations that defendant’s conduct was intentional, willful, malicious, performed with ill will, and in conscious disregard of plaintiffs’ rights does not satisfy the specific pleading requirement].) “Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a
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claim....” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)
Three essential elements must be present to raise a negligent act to the level of willful misconduct: (i) actual or constructive knowledge of the peril to be apprehended; (ii) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (iii) conscious failure to act to avoid the peril. (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689-690.)
The act of willfully becoming intoxicated and operating a motor vehicle alone may support a claim for punitive damages. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) A plaintiff, however, must plead and establish that defendant’s conduct “was such as to amount to a conscious disregard of the safety of and probable injury to other persons.” (See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) In Taylor v. Superior Court, the court held that allegations of the defendant’s operation of an automobile under the influence disclosed a conscious disregard of the probable dangerous consequences, where defendant was an alcoholic who was aware of the seriousness of his problem, of his tendency to drive while intoxicated, and of the dangerousness of his driving while in such condition.
Similarly, the court in Dawes v. Superior Court found that the trial court had abused its discretion in striking punitive damages claim, where the complaint alleged the defendant was driving while intoxicated in a manner where risk of injury was probable. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 86.) Specifically, the complaint in Dawes alleged the intoxicated defendant zigzagged in and out of traffic in excess of 65 miles per hour in a 35-mile per hour zone, in crowded beach recreation area at 1:30 on a weekend afternoon. (Ibid.)
The court previously sustained the Defendant Herrera’s demurrer to the complaint, ruling the allegations that Defendant chose to operate a vehicle while under the influence of alcohol were insufficient to support the claim for punitive damages. The court noted:
The Complaint does not allege facts showing Defendant Herrera knew or should have known of the danger, that injury was a probable result of her conduct, or a conscious failure to avoid that danger. Unlike the situations in Taylor and Dawes, there is no allegation here that Defendant Herrera was aware of the dangerousness of her driving while intoxicated, or that Defendant Herrera was driving in a manner where risk of injury was probable, not merely possible.
(04/10/2026 Minute Order [ROA # 38].)
Defendant argues the FAC remains deficient and that the punitive damages claim is not supported by factual allegations.
Plaintiffs argue the FAC alleges detailed facts and addresses the defects identified in the court’s prior ruling.
Defendant Herrera chose not to file a reply, effectively conceding the issue. (See, e.g., DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].)
In addition, the court has reviewed the allegations set forth in the FAC and finds Plaintiffs address the defects identified in the court’s prior ruling. The FAC alleges Defendant Herrera exhibited obvious signs of intoxication, including slurred speech, bloodshot and watery eyes, odor of alcohol, and impaired coordination. (FAC ¶ 9.) Her intoxication was extreme and severe, such that during a field sobriety investigation, she was unable to walk in a straight line, follow simple instructions, or comprehend or respond appropriately to directions given by law enforcement. (FAC ¶¶ 10-11.)
The FAC also alleges facts showing that Defendant in her highly intoxicated state drove through a populated area. (See FAC ¶ 17.) After the collision, Defendant Herrera made false statements to avoid responsibility and conceal her intoxication. (FAC ¶ 27.) These facts support a finding of conscious disregard of the safety of and probable injury to other persons.
No later than 10 days after service of the notice of ruling, Defendant Herrera SHALL file and serve an answer to the FAC.
Plaintiffs to give notice.
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