Judge Audra Mori, Case 21STCV39883 2023-02-09 Tentative Ruling

Plaintiffs Victoria Brianna Plancarte (“Plancarte”) and Natalie Priscilla Barr (“Barr”) (collectively, “Plaintiffs”) filed this action against defendants Lyft, Inc. (“Lyft”) and Ayalnesh Tessema (“Tessema”), et al. for damages arising from a motor vehicle accident.

Following the sustaining of Tessema’s demurrer to Plaintiffs’ First Amended Complaint, Plaintiffs filed the operative Second Amended Complaint (“SAC”) alleging that Plaintiffs were passengers in a vehicle driven by Tessema, who had accepted Plaintiffs as passengers via the “Lyft App.” (SAC ¶ 9.) While transporting Plaintiffs, Tessema made an unsafe, unlawful left turn in front of a vehicle driven by defendant Raquel Rosasarmijo, which resulted in a collision between the vehicles. (Id.) Plaintiffs allege that despite them being in an obvious physically and emotionally compromised state after the accident, Tessema ordered Plaintiffs to immediately exit her vehicle and left the scene of the accident, stranding Plaintiffs at the side of the road. (Id. at ¶ 14.) The SAC alleges causes of action for (1) negligence by asserted by Plancarte against all defendants, (2) intentional infliction of emotional distress (“IIED”) asserted by Plancarte against Tessema, (3) negligence asserted by Barr against all defendants, and (4) IIED asserted by Barr against Tessema. The SAC includes a prayer for punitive damages against Tessema only.

Defendant Tessema now demurs to the SAC arguing the second and fourth causes of action for IIED by Plaintiffs fail to state sufficient facts to constitute a claim against her. Additionally, Tessema moves to strike portions of the SAC and the prayer for punitive damages. Plaintiff filed a combined opposition to the demurrer and motion. Any reply was due on or before February 2, 2023. As of February 7, 2023, no reply has been filed.

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).)

The Court finds Tessema has fulfilled this requirement prior to filing the demurrer. (Demurrer McLean Decl. ¶¶ 5-6.)

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, the SAC alleges that while Plaintiffs were passengers in Tessema’s vehicle, Tessema caused a collision with another vehicle and then ordered Plaintiffs out of her vehicle and drove away, stranding injured Plaintiffs on the side of the road. (SAC at ¶¶ 9, 14.) Plaintiffs allege that by fleeing the scene of the accident, Tessema caused or contributed to additional injuries beyond those sustained in the collision itself. (Id. at ¶ 16.) Regarding the IIED claims, the SAC alleges:

The allegations contained in paragraphs [1-2], 3, 6-9,12-16 of this Complaint are re-alleged and incorporated herein by reference as if fully set out at this place.

Defendant Tessema’ s post-Collison misconduct as alleged herein constitutes purposeful, willful, and outrageous conduct the natural consequence of which under the circumstances was likely to, and did in fact, cause Plaintiff Plancarte [and Plaintiff Barr] to suffer severe emotional distress, all to [their] damage in an amount to be shown according to proof.

Defendant Tessema either intended to cause Plaintiff Plancarte’s [sic] [and Plaintiff Barr] to suffer emotional distress or acted with reckless disregard of the probability that Plaintiff Plancarte [and Barr] would suffer such emotional distress.

The conduct of Defendant Tessema as herein alleged was despicable and malicious, in gross violation of norms established by law and was done with willful and knowing disregard for the rights of Plaintiff[s] justifying an award of damages by way of punishment and example to others.

The allegations are insufficient to state a claim for IIED because severe emotional suffering is insufficiently alleged. The SAC makes the conclusory allegation that Tessema’s conduct caused Plaintiffs to suffer “shock and severe emotional distress.” (SAC ¶ 16; see also SAC ¶¶ 22, 29.) 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.)

Based on the foregoing, Tessema’s demurrer to the second and fourth causes of action for IIED by Plaintiffs against Tessema is sustained.

The burden is on Plaintiffs to show in what manner they 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 do not request leave to amend. Further, this is the second demurrer sustained as to the IIED claims, and there is no showing they can be cured to state a claim against Tessema.

Tessema’s demurrer is sustained as to the second and fourth causes of action for IIED without leave to amend.

Tessema further moves to strike the second and fourth causes of action in their entirety and the prayer for punitive damages in the SAC. As to the request to strike the IIED causes of action, the request is moot in light of the above ruling sustaining the demurrer to these claims. Further, the appropriate way to challenge an entire cause of action is through demurrer, which was addressed above, not a motion to strike. Thus, the Court will address only 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.)

Here, Tessema contends that Plaintiffs’ only appropriate claims against her sound in negligence, and that SAC’s allegations are insufficient to support a prayer for punitive damages.

In opposition, Plaintiffs contend that Tessema “committed a crime when [sic] fled the scene of the accident,” that this conduct should be deterred, and that it amounted to malice. (Opp. at p. 8:1.)

As to Plaintiffs’ contention that Tessema committed a felony by fleeing the scene of the accident, Plaintiffs cite no authority holding that the alleged commission of a felony is sufficient to state a claim for punitive damages against a defendant. Moreover, there are no specific factual allegations showing that Tessema’s fleeing the scene of the accident caused Plaintiffs to suffer additional damages, such that Tessema’s conduct was malicious, fraudulent, or oppressive. (See Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 [hit and run cannot give rise to damages unless the fact of the hit and run caused additional damages above and beyond the accident itself].) As referenced above, Plaintiffs allege in a conclusory fashion that the additional damages that they suffered as a result of Tessema leaving the scene consisted of “shock and severe emotional distress,” but they provide no supporting facts.[1]

Based on the foregoing, Tessema’s motion to strike is granted as to the prayer for punitive damages. Plaintiffs do not request leave to amend concerning the motion to strike and do not otherwise show the SAC can be cured to state a claim for punitive damages against Tessema.

Hon. Audra Mori

Judge of the Superior Court

[1] Tessema’s demurrer to the second and fourth causes of action has been sustained, and thus, these causes of action are insufficient to support the prayer for punitive damages.