Judge Audra Mori, Case 20STCV24052 2023-02-16 Tentative Ruling

Plaintiff Shi Biao Hu (“Plaintiff”) filed this action against Defendant Jorge Ochoa (“Defendant”) for damages relating to a motor vehicle accident. On December 13, 2022, Plaintiff filed his First Amended Complaint (“FAC”) alleging causes of action for (1) negligence, (2) intentional infliction of emotional distress (“IIED”), (3) assault, and (4) battery. The FAC alleges that after Defendant negligently caused the accident, “Defendant was angry about the occurrence and without exiting his vehicle or exchanging information to identify himself for a bodily injury and/or property damage claim by the plaintiff, he drove away as plaintiff was hanging on his vehicle and then unreasonably failed to stop to avoid great bodily harm and injuries. In consequence, plaintiff was thrown off or fell off the defendant’s vehicle, hit the asphalt pavement and suffered harm and injuries, …” (FAC ¶ 6.) The FAC includes a prayer for punitive damages.

Defendant now demurs to the FAC arguing the second, third, and fourth causes of action fail to state sufficient facts to constitute a claim against him. In addition, Defendant moves to strike portions of the FAC and the prayer for punitive damages. Plaintiff opposes the demurrer and motion to strike, and Defendant filed replies to the oppositions.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Citron Decl. ¶¶ 4-7.)

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].) And again, a defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].)

Here, Defendant contends that the FAC fails to allege extreme or outrageous conduct by Defendant, and that there is an absence of intent or reckless disregard alleged. Further, Defendant avers that FAC does not allege resulting severe emotional suffering as required to state a claim for IIED.

In arguing that the demurrer is meritless, Plaintiff primarily relies on the following allegations in the FAC: that on July 3, 2018, Defendant rear-ended the vehicle owned and bring operated by Plaintiff. (FAC ¶ 5.)

6. Defendant was angry about the occurrence and without exiting his vehicle or exchanging information to identify himself for a bodily injury and/or property damage claim by the plaintiff, he drove away as plaintiff was hanging on his vehicle and then unreasonably failed to stop to avoid great bodily harm and injuries. In consequence, plaintiff was thrown off or fell off the defendant’s vehicle, hit the asphalt pavement and suffered harm and injuries, infra.

11. Defendant OCHOA was angry and upset because of the collision he caused, and when he saw plaintiff and his passenger exit plaintiff’s vehicle to take pictures, it compounded his anger at the plaintiff. Defendant OCHOA could hear and he knew plaintiff and his passenger were cajoling him to produce his license, registration and insurance information, but rather than comply with the law and/or accede to the escalating demands and concerns of the plaintiff that he stop, OCHOA started to leave the scene by backing up his vehicle.

12. OCHOA knew at all times by his actions and conduct he was violating conventions and the law, to wit, Vehicle Code §§16025, 20001, 20002, 20003, and he intended to cause plaintiff severe emotional distress by continuing to operate his vehicle in plaintiff’s proximity, and he knew his flight from the scene would induce plaintiff’s reaction of outrage and an attempt by plaintiff to detain him.

13. Even as he saw and knew plaintiff was holding onto his vehicle to prevent his flight, OCHOA accelerated, and in so doing he intended to cause plaintiff severe distress, fear and an imminent (moving) forceful contact with the pavement. Plaintiff did fall off as OCHOA intended, striking the pavement with such force as to create severe injuries and damages as alleged herein. Following the fall, OCHOA knew of the high probability and substantial certainty plaintiff had been severely injured, but he intended to continue causing severe distress by driving off and away, to avoid assisting plaintiff, to avoid detection and accountability for OCHOA’s wanton and outrageous actions.

(Id. ¶¶ 6, 11-13.) Plaintiff allegedly suffered “severe mental and physical pain and suffering” and “severe mental trauma, emotional distress, and outage” because of Defendant’s conduct. (Id. at ¶¶ 7, 14.)

Even if it assumed for the purposes of argument that outrageous conduct and the intention to cause, or reckless disregard for causing, emotion distress is alleged, Plaintiff only makes the conclusory allegation that he suffered “severe mental and physical pain and suffering” and “severe mental trauma, emotional distress, and outage” because of Defendant’s conduct. (Id. at ¶¶ 7, 14.) Without factual explanation, this is insufficient to meet the high bar to establish severe emotional distress. (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress]; see also Hughes (2009) 46 Cal.4th at 1051.) This alleged distress does not rise to the level of “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes (2009) 46 Cal.4th at 1051.) Thus, the FAC does not allege the necessary element of severe emotional distress.

Defendant’s demurrer to the FAC is sustained as to the second cause of action for IIED.

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Kiseskey v. Carpenters’ Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 [“The tort of assault is complete when the anticipation of harm occurs.”].)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen, supra, 227 Cal.App.4th at 890; see also Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495 [contact is unlawful if unconsented to].)

In this case, Defendant contends that the FAC fails to allege that Defendant touched Plaintiff or caused Plaintiff to be touched with the intent by Defendant to harm or offend Plaintiff, or that Defendant acted in any manner as to cause Plaintiff to be in immediate apprehension of harmful or offensive contact.

In opposition, Plaintiff contends that Defendant “used his vehicle as an instrument of deadly force to assault and batter” Plaintiff while in flight from the collision Defendant caused.

The cause of action for assault alleges, “By moving his vehicle in the direction of the plaintiff, through its use as an instrument to injure the plaintiff, and by such other force and violence, the defendant intended to place plaintiff in fear of an imminent battery on his person, and did so out of malice.” (FAC ¶ 16.) The battery claim similarly alleges, “By moving his vehicle in the direction of the plaintiff, through its use as an instrument to injure the plaintiff, and by such other force and violence, the defendant battered the plaintiff with his vehicle, and did so out of spite and malice.” (Id. at ¶ 20.)

As to the assault claim, the FAC does not include any allegations stating that Plaintiff reasonably believed that he was about to be touched in a harmful or offensive manner. It is also noted that the FAC fails to allege expressly that Plaintiff did not consent to any purported acts by Defendant constituting assault. (Carlsen, 227 Cal.App.4th at 890.)

As to the battery claim, the FAC alleges in a conclusory manner that Defendant battered Plaintiff with his vehicle. This is insufficient to state a cause of action for battery. The FAC does not allege that Plaintiff did not consent to the touching, or that a reasonable person in Plaintiff’s position would have been offended by any alleged touching. (Id.)

Without the missing allegations, the causes of action for assault and battery are insufficient and indefinite. This is particularly true because the causes of action incorporate the earlier allegation that “plaintiff was holding onto [Defendant’s] vehicle to prevent [Defendant’s] flight,” which indicates that initially Plaintiff intentionally touched the vehicle.

Based on the foregoing, the demurrer is sustained as to the third cause of action for assault and the fourth cause of action for battery.

Therefore, Defendant’s demurrer is sustained to the second cause of action for IIED, third cause of action for assault, and fourth cause of action for battery without leave to amend. These causes of action are ordered dismissed against Defendant.

Defendant further moves to strike portions of the FAC relating to the second, third, and fourth causes of action and to strike the prayer for punitive damages in the FAC.

As to the second, third, and fourth causes of action, in light of the ruling sustaining the demurrer to these causes of action, the motion to strike is moot. Thus, the Court will address only the motion as it relates to the prayer for punitive damages.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” “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. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code §3294.)

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). Thus it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Here, Defendant avers the complaint is devoid of any factual allegations sufficient to support the request for punitive damages. In opposition, Plaintiff contends that the FAC sufficiently pleads a claim for punitive damages based on the allegations that Defendant accelerated his vehicle to leave the scene of the accident and caused Plaintiff to drop off the vehicle.

Because the demurrer was sustained as to the allegations in the causes of action for IIED, assault, and battery, those allegations are not presently available to support a claim for punitive damages. The remainder of the FAC alleges that after Defendant caused the accident, and because he was angry about the accident, Defendant “drove away as plaintiff was hanging on his vehicle and then unreasonably failed to stop to avoid great bodily harm and injuries. In consequence, plaintiff was thrown off or fell off the defendant’s vehicle, hit the asphalt pavement and suffered harm and injuries.” (FAC ¶ 6.) These allegations do not rise to the level of malice, fraud, or oppression, as defined by the Code. The remaining allegations contain no factual allegations showing a conscious and deliberate disregard of the safety of others, or any allegations of fraudulent misrepresentations. For example, although the FAC alleges that Defendant drove away while Plaintiff was hanging onto Defendant’s vehicle, there are no allegations remaining suggesting that Defendant was aware Plaintiff was hanging onto his vehicle or that Defendant intended to cause Plaintiff physical harm by driving away. In order to plead punitive damages, Plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.) This requires Plaintiff to allege sufficient facts to support conclusory allegations, which Plaintiff has not done. (Brousseau, 73 Cal.App.3d at 872 [“the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ...”].)

Accordingly, Defendant’s motion to strike the request for punitive damages in the FAC is granted.

The burden is on Plaintiff to show in what manner he can amend the FAC, 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.) Plaintiff does not request leave to amend. However, if Plaintiff appears at the hearing and requests leave to amend as to the punitive damages, the Court will be inclined 20 days leave to amend to allow Plaintiff to allege additional allegations in support of the punitive damages claim, as it appears there is a reasonable possibility the complaint can be cured to state a claim for punitive damages against Defendant.

Hon. Audra Mori

Judge of the Superior Court