NATURE OF PROCEEDINGS: Hearing on Defendants’ Demurrer with Motion to Strike

 

Defendants’ Demurrer with Motion to Strike is treated as a Motion to Strike, which is granted with leave to amend.

 

BACKGROUND

Plaintiff Lattis Pugh  (Plaintiff) filed this action against Bryanna Mary Jane Haro, Ignacio Haro, and Eli’s Collision Repair, alleging that their negligent operation of tow trucks resulted in the destruction of Plaintiff’s vehicle and Plaintiff suffering personal injuries.

The sole cause of action is negligence.

 

Defendants Bryanna Mary Jane Haro and Ignacio Haro (Defendants) filed a Demurrer with Motion to Strike. Plaintiff filed an Opposition.

 

LEGAL STANDARD

When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, courts assume the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.

Further, the court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. Id. § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id. § 437.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”). The burden is on the complainant to show the Court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

 

ANALYSIS

I. Statute of Limitations

Defendants demur to the Complaint because it is barred by the statute of limitations.

“‘[A] demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.’” Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 313 (quoting Baright v. Willis (1984) 151 Cal.App.3d 303, 311) (citations omitted) (internal quotation marks omitted). However, where the action is untimely on the face of the complaint, the plaintiff must allege facts showing tolling or delayed accrual. See Carrillo v. County of Santa Clara (2023) 89 Cal.App.5th 227, 234 (“To rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.”)

A. Personal Injury

The limitations period is two years for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Code Civ. Proc., § 335.1.

Plaintiff filed the Complaint on February 13, 2024. Therefore, to be timely under the two-year limitations period for personal injury claims, the cause of action must have accrued no later than February 13, 2022. However, the Complaint states “[e]ach and all of the acts, events, circumstances, injuries and damages alleged hereinafter, took place and were sustained during the year of MARCH 27, 2021….” Compl. ¶ 9.

Plaintiff concedes that the date of the accident was March 27, 2021, but argues that the personal injury claims may have been tolled by tolling doctrines such as Covid-19 Tolling Orders, Equitable Tolling, or Delayed Discovery. However, the Complaint does not plead any facts supporting the application of any of these tolling defenses. Plaintiff contends that, at the pleading stage, “Plaintiff is not required to plead facts anticipating a statute of limitations defense or establishing tolling.” Opp. at p. 8:26-28.

In support of that principle, Plaintiff cites Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 813 (Fox). On the contrary, Fox held, “to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” Fox, supra, 35 Cal.4th at p. 808 (quoting McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160).

Accordingly, as alleged, Plaintiff’s personal injury claim is barred by the statute of limitations.

B. Injury to Property

Plaintiff argues that in addition to alleging personal injury, the Complaint alleges damage to personal property, which is subject to a three-year limitations period.

The limitations period is three years for “[a]n action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.” Code Civ. Proc., § 338, subd. (c)(1).

Here, Plaintiff alleges that Defendants’ conduct caused Plaintiff’s vehicle to be destroyed and damaged Plaintiff’s property. Compl. ¶¶ 13-14. Because the three-year statute of limitations applies as to the alleged vehicle damage, Plaintiff’s Complaint, as a whole, is not barred by the statute of limitations.

The Court treats Defendants’ Demurrer as a Motion to Strike references to Plaintiff’s personal injuries. See Code Civ. Proc., § 436, subds. (a) and (b). Said motion is granted with leave to amend.

II. Punitive Damages

Defendants move to strike punitive damages.

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. 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.” Civ. Code, § 3294 subd. (c)(1).

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (citations omitted). “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (fn. omitted) (citations omitted). Punitive damages may be assessed against an employer where the employer authorized or ratified a malicious act. College Hospital Inc., supra,8 Cal.4th at. p 723.

For nonintentional torts, punitive damages may be assessed “when the conduct constitutes conscious disregard of the rights or safety of others.” Peterson v. Superior Court (1982) 31 Cal.3d 147, 158; “[A] conscious disregard of the safety of others may [thus] constitute malice within the meaning of section 3294 of the Civil Code. To justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.’” Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 402, (quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 (Taylor). To establish malice, “it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b). Managing agents are “corporate employees who exercise substantial independent authority and judgment in their corporate [decision-making] so that their decisions ultimately determine corporate policy.” White v. Ultramar (1999) 21 Cal.4th 563, 566-67.

The act of operating a motor vehicle while intoxicated may constitute an act of malice if performed under circumstances that disclose a conscious disregard of the probable dangerous consequences. See Taylor, supra, 24 Cal. 3d at p. 895-896; Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 936 (Sumpter). In Sumpter, the court concluded that punitive damages were permissible but not required, where the defendant ingested drugs right before leaving the house, drove a vehicle at excessive speed, and entered the intersection despite knowing the light was red. Sumpter, supra, 158 Cal.App.4th at p. 936

Here, the Complaint provides limited details regarding the alleged accident and does not allege that the Defendants were under the influence at the time of the accident. Plaintiff has failed to allege any facts supporting entitlement to punitive damages. Accordingly, Defendants’ motion to strike punitive damages is granted with leave to amend.

 

CONCLUSION

Treating Defendants’ Demurrer as a Motion to Strike references to Plaintiff’s personal injuries, the motion is granted. Defendants’ Motion to Strike Punitive Damages is granted. Plaintiff has twenty days leave to amend.