Judge: Daniel M. Crowley, Case: 21STCV30025, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCV30025    Hearing Date: August 16, 2022    Dept: 28

Defendant Brigel Anselmo Calderon’s Demurrer with Motion to Strike

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

BACKGROUND

On August 13, 2021, Plaintiff Sergio Alarcon (“Plaintiff”) filed this action against Defendant Brigel Anselmo Calderon (“Defendant”) for motor vehicle negligence and general negligence.

On October 12, 2021, Plaintiff filed the FAC. On April 13, 2022, Plaintiff filed the SAC, adding a third cause of action for intentional infliction of emotional distress

On June 29, 2022, Defendant filed a Demurrer with Motion to Strike to be heard on August 16, 2022.

Trial is scheduled for September 6, 2022.

PARTY’S REQUESTS

Defendant requests the Court sustain the demurrer to the third cause of action for IIED. Defendant also requests the Court strike all references to punitive damages, including the request.

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.)

DISCUSSION

Demurrer

Plaintiff’s complaint provides that on March 14, 2021, at the subject location, Defendant operated Defendant’s vehicle negligently and recklessly, resulting in injuries to Plaintiff. It provides that Defendant collided with Plaintiff and then failed to stop, intending to cause emotional distress.

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. Fleeing the scene of an accident after rear ending someone is not considered, alone, to be extreme and outrageous conduct. There are no additional facts to support a finding of intent or reckless disregard for causing extreme emotional distress. As such, the Court sustains the demurrer as to this 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 rear ended Plaintiff and then fled the scene. 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. A simple hit and run does not qualify as such. In the absence of aggravating allegations, there is no basis for punitive damages. The Court grants the motion.

CONCLUSION

Defendant Brigel Anselmo Calderon’s Demurrer is SUSTAINED, with 30 days leave to amend.

Defendant Brigel Anselmo Calderon’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.