Judge: Daniel M. Crowley, Case: 21STCV44745, Date: 2022-12-15 Tentative Ruling

Case Number: 21STCV44745    Hearing Date: December 15, 2022    Dept: 28

Defendant Moeller Trucking, Inc.’s Demurrer with Motion to Strike

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

BACKGROUND

On December 8, 2021, Plaintiff Daniel Dubon (“Plaintiff”) filed this action against Defendants Moeller Trucking, Inc. (“Moeller”) and John Doe (“Doe”) for motor vehicle negligence, general negligence, violation of vehicle code § 20001(a) and intentional infliction of emotional distress.

On November 3, 2022, Moeller filed a Demurrer with Motion to Strike to be heard on December 15, 2022. On December 5, 2022, Plaintiff filed an opposition. On December 8, 2022, Moeller filed a reply.

Trial is scheduled for August 24, 2023.

PARTY’S REQUESTS

Moeller requests the Court sustain the demurrer to the third and fourth causes of action. Moeller also requests the Court strike the request for punitive damages, and all mentions of malice or punitive damages in the third and fourth causes of action.

Plaintiff requests the Court overrule the demurrer and deny the motion.

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 alleges that Doe negligently merged into Plaintiff’s lane of travel, colliding into Plaintiff’s vehicle. Doe then immediately fled the scene.

The third and fourth causes of action are only asserted against Doe, not Moeller. Moeller does not have standing to demurrer to causes of action not asserted against it, as it is only responding on behalf of Moeller. The Court overrules the demurrer.

Motion to Strike

The Motion to Strike must be denied for similar reasons. Punitive damages are derived from the third and fourth causes of action and clearly reference the actions of Doe, not Moeller. As Moeller is only responding on behalf of Moeller, Moeller does not have standing to strike the requested portions of the complaint. The Court denies the motion to strike.

CONCLUSION

Defendant Moeller Trucking, Inc.’s Demurrer is OVERRULED.

Defendant Moeller Trucking, Inc.’s Motion to Strike is DENIED.

            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.