Judge: Brian F. Gasdia, Case: 23NWCV00061, Date: 2023-09-08 Tentative Ruling


Case Number: 23NWCV00061    Hearing Date: September 8, 2023    Dept: R

AGUILAR v. INTERNATIONAL FORKLIFT COMPANY

CASE NO.:  23NWCV00061

HEARING: 9/8/23

 

#4

TENTATIVE RULING

 

I.                Defendant International Forklift Company’s motion for judgment on the pleadings is GRANTED with 10 days leave to amend as to the 4th – 7th causes of action, and DENIED as to the 8th cause of action.

 

II.              Defendant International Forklift Company’s motion to strike is GRANTED with 10 days leave to amend.

 

Moving Party to give NOTICE.

 

 

The Complaint alleges that on August 24, 2022, “Plaintiff was driving on the Interstate 15 highway in San Bernardino County driving from San Bernardino where the Plaintiff resides to Victorville, also in San Bernardin County, when Plaintiff was struck several times from behind by Defendant DOE Driver 1.”  (Complaint, ¶15.)  “Defendant DOE Driver 1 was speeding in violation of California Vehicle Code $ 22350, was texting and driving in violation of California Vehicle Code $ 23123, was tailgating the Plaintiff i violation of California Vehicle Code ) 21703, and was driving entirely recklessly and with reckless disregard for the safety of other drivers on the road„ including Plaintiff, in violation of California Vehicle Code $ 23103.”  (Id., ¶ 16.)  “Defendant DOE Driver 1 was driving a large hack which was licensed and signified on the side as belonging to Defendant International Forklift Company.”  (Id.,¶ 17.)  Plaintiff alleges he got out of his car, approached the Defendants' vehicle, and attempted to speak to Defendant DOE Driver 1 who refused to roll down his window. Plaintiff returned to his car and began filling out the relevant insurance information, and when Plaintiff looked up, Defendant DOE Driver 1 was pulling out to drive away. The Defendant took off driving, in grave violation of California Vehicle Code g 20001.”  (Id., ¶ 18.)  “Plaintiff began pursuing Defendant DOE Driver 1 in his vehicle, and Plaintiff dialed 911, providing them with the license plate numbers of the hit-and-run vehicle. The operator told Plaintiff to stop pursuing the Defendants' vehicle.”  (Id., ¶ 19.)  “Plaintiff immediately filed a police report with the San Bernardino Police Department to report the hit and run incident on or around August 25, 2022.”  (Id., ¶ 20.)  The Complaint asserts causes of action for:

 

1.              Negligence

2.              Negligence Per Se

3.              Pain and Suffering

4.              IIED

5.              NIED

6.              Assault/Battery

7.              Reckless Endangerment

8.              Bus. & Prof. Code § 17200

9.              Respondeat Superior

10.          Strict Liability

 

I.                Motion for Judgment on the Pleadings

 

Defendant International Forklift Company moves for judgment on the pleadings as to punitive damages, IIED, NIED, Assault/Battery, Reckless Endangerment, and Bus. & Prof. Code § 17200.

 

A party may move for judgment on the pleadings.” (CCP § 438(b)(1).  Where the pleadings are defective, “the defect may be raised by demurrer or motion to strike, or by motion for judgment on the pleadings.”  (Coyne v. Krempels (1950) 36 Cal. 2d 257, 262.)

 

4th – 5th CAUSES OF ACTION

 

IIED:  The elements are:  1) outrageous conduct by defendant; 2) an intention to cause, or reckless disregard of the probability of causing, emotional distress; 3) severe emotional distress; and 4) causation.  (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Trerice v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 - “court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery”; Alcorn v. Anbro Eng., Inc. (1970) 2 Cal.3d 493, 499 - outrageous conduct is a fact question where reasonable minds may differ.)

 

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:  The elements are:  1) legal duty to use due care; 2) breach of such legal duty; 3) damage or injury; and 4) cause of the resulting damage or injury.  (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 618 - “‘[s]erious emotional distress is an essential element of the cause of action for negligent infliction of emotional distress,’” quoting Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 286; see also Smith v. Pust (1993) 19 Cal.App.4th 263, 273 - plaintiff must be direct victim or a bystander who witnessed to the injury; but see Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796 n.4 - there is no tort of negligent infliction of emotional distress, but instead it is negligence.)

 
¶ 59 alleges that “Defendant was speeding in violation of California Vehicle Code § 22350, was texting and driving in violation of California Vehicle Code § 23123, was tailgating the Plaintiff in violation of California Vehicle Code § 21703, and was driving entirely recklessly and with reckless disregard for the safety of other drivers on the road, including Plaintiff, in violation of California Vehicle Code § 23103.”  ¶ 60 alleges that Defendants engaged in intentional conduct, including tailgating, speeding, and distracted driving which Defendants actively chose to engage in, and knew, or reasonably should have known, that such driving would cause a car incident, and injury and emotional distress to the Plaintiff.”  ¶¶ 64-65 allege severe emotional distress.

 

The court finds that the allegations are insufficient to support claims for IIED and NIED.  “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)  Further, “if reckless conduct is the basis for recovery, the plaintiff is usually present at the time of the conduct and is known by the defendant to be present.” (Id. at 905.) 

 

Texting, reckless driving, or tailgating is not conduct directed at plaintiff with the intention to cause Plaintiff emotional distress.

 

Accordingly, the motion is GRANTED with 10 days leave to amend as to the 4th – 5th causes of action.

 

6th CAUSE OF ACTION

 

The elements for a cause of action for ASSAULT are:  1) Defendant intentionally caused plaintiff’s immediate apprehension of a harmful or offensive contact with the plaintiff’s body; 2) plaintiff did not consent to the contact; and 3) the contact caused injury, damage, loss or harm to plaintiff, such as emotional distress.  (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6;  5 Witkin, Cal. Pro. (4th ed. 1997) Pleading §722.) 

 

The elements for a cause of action for BATTERY are:  1) Defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff’s body; 2) plaintiff did not consent to the contact; and 3) the contact caused injury, damage, loss or harm to plaintiff.  (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526; Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.)

 

Plaintiff claims that Defendant committed assault and battery with the vehicle, citing People v. Marsh (2019) 37 Cal.App.5th 474, 486 and People v. Dealba (2015) 242 Cal.App.4th 1142, 1151.  However, these two cases are criminal cases dealing with the crime of assault with a deadly weapon.  Plaintiff failed to cite any civil cases authorizing claims for Assault and Battery in this motor vehicle action.

 

Accordingly, the motion is GRANTED with 10 days leave to amend as to the 6th cause of action.

 

7th CAUSE OF ACTION

 

RECKLESS ENDANGERMENT is not a recognized tort in California.  Plaintiff cites a 1961 case, Levizon v. Harrison (1961) 198 Cal.App.2d 274, 279–280, for the proposition “California recognizes a type of tortious misconduct which is characterized… as ‘reckless disregard of the safety of another.’”  However, Levison does not stand for the proposition that Reckless Endangerment is a separate cause of action.  Reckless disregard, conscious disregard, intent, willfulness, or malice allow for recovery of heightened or punitive damages for tortious conduct.  Although Reckless Endangerment may be used in the criminal setting for sentencing enhancements, this court knows of no legal authority holding that Reckless Endangerment is a separate cause of action in the civil setting. 

 

Accordingly, the motion is GRANTED with 10 days leave to amend as to the 7th cause of action.

 

8th CAUSE OF ACTION

 

BUS. & PROF. CODE § 17200:  The Unfair Business Practices Act shall include “any unlawful, unfair or fraudulent business act or practice.” (B&P Code § 17200.)  A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.)  Even a single incident - a one-time act that is unfair, unlawful or fraudulent - is sufficient to state a claim under 17200.  (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 fn. 3.) 

 

¶¶ 96-106 allege that defendant negligently hired, retain, and supervised its employees, which constitutes an unfair business act.

 

At this pleading stage, Plaintiff has alleged an unfair business practice.  Accordingly, the motion is DENIED as to the 8th cause of action.

 

II.       Motion to Strike

 

Defendant International Forklift Company moves to strike punitive damages allegations.

 

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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.  (CCP § 436.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records).  (CCP § 437.)

 

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.  (1) "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.  (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (CC § 3294(a).)  

 

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.) To properly allege punitive damages in a motor vehicle accident action, a plaintiff 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." (Taylor, 24 Cal.3d at 896.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

 

Here, allegations of texting, speeding, and tailgating are insufficient to support punitive damages.

 

The additional allegation that Defendant fled the scene of the accident does not change the outcome here.  In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 the court found that a 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. Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run.  It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run.  For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood, death, etc. If, however, the accident causes immediate soft tissue damage, no amount of aid would reduce or minimize the future damages, and the hitting and running would not give rise to additional damages.  If the act of hitting and running, in and of itself, does not give rise to a tort, then it logically follows that the act cannot give rise to a claim for punitive damages.  (Id.)

 

Here, ¶ 10 alleges that “Plaintiff… got out of his car, approached the Defendants' vehicle, and attempted to speak to Defendant DOE Driver 1 who refused to roll down his window. Plaintiff returned to his car and began filling out the relevant insurance information, and when Plaintiff looked up, Defendant DOE Driver 1 was pulling out to drive away. The Defendant took off driving, in grave violation of California Vehicle Code § 20001.”  (Id., ¶ 18.)  The complaint does not allege that Plaintiff suffered any additional damages because of Defendant’s alleged fleeing.  (Brooks, 40 Cal.2d at 679.) 

 

Accordingly, the motion to strike punitive damages is GRANTED with 10 days leave to amend.