Judge: Daniel M. Crowley, Case: 21STCV24289, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCV24289    Hearing Date: August 16, 2022    Dept: 28

Defendant Wesley Yoshimi Harada’s Demurrer with Motion to Strike

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On June 30, 2021, Plaintiff Nakia Mijoy Phillips (“Plaintiff”) filed this action against Defendant Wesley Yoshimi Harada (“Defendant”) for motor vehicle negligence and general negligence.

On May 31, 2022, Plaintiff filed the FAC with causes of action for negligence – motor vehicle negligence, negligence per se and intentional infliction of emotional distress.

On July 5, 2022, Defendant filed a Demurrer with Motion to Strike to be heard on August 17, 2022. On August 4, 2022, Plaintiff filed an opposition.

Trial is scheduled for December 28, 2022.

PARTY’S REQUESTS

Defendant requests the Court sustain the demurrer to the cause of action for Intentional Infliction of Emotional Distress. Defendant also requests that the Court strike all references to malice and punitive damages.

Plaintiff requests the Court overruled the demurrer and deny the motion to strike.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ 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’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

“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, 903-904.)

In order 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. (Coll. Hosp., 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 (a).) “Malice is defined in the statute as conduct 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “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.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

“...[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’...if performed under circumstances which disclose a conscious disregard of the probably dangerous consequences.” (Taylor v. Superior Court (1979), 24 Cal.3d 890, 892.)

DISCUSSION

Demurrer

Plaintiff’s complaint provides that Defendant negligently changed lanes, colliding Defendant’s vehicle with Plaintiff’s. Plaintiff further alleges that Defendant was under the influence of sedative drugs at the time of the incident, as he had been administered said drugs approximately 15 hours before the incident. When he was administered the sedative, he signed a release stating that he was not drive a vehicle for 24 hours.

Defendant argues that the IIED cause of action should be subject to demurrer as it does not meet the elements for an IIED claim. The Court agrees. First, the Court notes that Plaintiff does not allege facts sufficient to support a cause of action based on “severe or extreme emotional distress.” Nothing within the complaint shows that there is any level of emotional distress beyond that associated with a typical car accident, which does not rise to the level of an IIED claim. Second, the Court agrees that driving while potentially still feeling the effects of sedation does not constitute extreme and outrageous behavior. Even though it may have not been the safest choice, it does not rise to the level of outrageousness required for an IIED claim. For example, driving under the lingering influence of anesthetic can similarly impair someone to the same extent as driving under the influence of other drugs or alcohol. However, in cases brought under DUI theories, there is no inherent basis for IIED or punitive damages claims. There must be other extenuating circumstances that make these claims rise to a level of extreme and outrageous OR a level of malice. The facts as pled here, which simply allege that Defendant drove less than 24 hours after receiving anesthetic, do not constitute extenuating circumstances. The Court sustains the demurrer.

Plaintiff points to the minute order of the Motion for Leave to file the FAC, in which the Court ruled that the CVC makes it a crime to drive under the influence of drugs, and that the Court noted that “Defendant’s alleged choice to operate a vehicle under the influence may support a claim of IIED based on reckless disregard.” The Court specifically notes that word “may.” Similarly, to driving under the influence of alcohol, which is also a crime, a cause of action based upon driving while intoxicated may provide a basis for an IIED claim or punitive damages. Generally, this is only done when there are other extenuating circumstances—here, Plaintiff has not claimed any other extenuating circumstances. As such, the Court will sustain the demurrer with leave to amend, so that Plaintiff may include any additional facts to support Plaintiff’s cause of action.

Motion to Strike

The Court finds that the facts, as pled, do not provide a basis for a claim for punitive damages. Plaintiff effectively pleads that Defendant drove while potentially experiencing the lingering effects of anesthetic. That is insufficient to support a finding of oppression, fraud of malice. Malice requires intent to injury or despicable conduct carried on with willful and conscious disregard for the rights or safety of others. Driving while potentially impaired does not rise to that level. In the absence of aggravating allegations, there is no basis for punitive damages. The Court grants the motion.

CONCLUSION

Defendant Wesley Yoshimi Harada’s Demurrer is SUSTAINED, with 30 days leave to amend.

Defendant Wesley Yoshimi Harada’s Motion to Strike is GRANTED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.