Judge: Daniel M. Crowley, Case: 22STCV06837, Date: 2023-03-13 Tentative Ruling

Case Number: 22STCV06837    Hearing Date: March 13, 2023    Dept: 28

Defendant Samuel Alan Aaron’s Demurrer with Motion to Strike

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

BACKGROUND

On February 24, 2022, Plaintiff Adam Murad Herbert Bonavida (“Plaintiff”) filed this action against Defendants Christian Joseph Smallwood (“Smallwood”), Tony Guldalian (“Guldalian”), Kursten Claire Rush (“Rush”) and Samuel Alan Aaron (“Aaron”) for motor vehicle negligence, intentional infliction for emotional distress, negligence and negligent entrustment. Plaintiff later amended the complaint to include Defendant Anthony Ceballos (“Ceballos”).

On April 18, 2022, Rush filed an answer and a Cross-Complaint against Cross-Defendants Smallwood and Aaron for indemnity, contribution and declaratory relief. On October 21, 2022, Aaron filed an answer. On November 1, 2022, Smallwood filed an answer.

On May 18, 2022, Guldalian filed an answer. On May 19, 2022, Smallwood filed an answer.

On September 21, 2022, Ceballos filed an answer and a Cross-Complaint against Cross-Defendants Smallwood and Aaron for indemnity, apportionment and contribution and declaratory relief. On November 1, 2022, Smallwood filed an answer.

On September 27, 2022, Plaintiff filed the FAC.

On November 1, 2022, Smallwood and Rush filed answers. On November 30, 2022, Guidalian filed an answer.

On November 9, 2022, Smallwood filed a Cross-Complaint against Cross-Defendant Aaron for equitable indemnity, contribution and declaratory relief.

On January 6, 2023, Plaintiff filed the SAC, adding an additional cause of action for Intentional Infliction of Emotional Distress.

On January 30, 2023, Ceballos filed an answer. On February 3, 2023, Rush filed an answer. On February 6, 2023, Guldalian filed an answer. On February 7, 2023, Smallwood filed an answer.

On February 6, 2023, Aaron filed a Demurrer with Motion to Strike to be heard on March 13, 2023. On February 27, 2023, Plaintiff filed an opposition. On March 6, 2023, Defendant filed a reply.

Trial is scheduled for August 24, 2023.

PARTY’S REQUESTS

Aaron requests the Court sustain the demurrer as to the cause of action for IIED for a failure to state facts sufficient to constitute a cause of action. Aaron also requests the Court strike 1. ¶13, line 8: “as to travel at an unsafe speed . . .” 2. ¶15; 3. ¶25 in its entirety relating to punitive and exemplary damages; 4. ¶35; 5. ¶38, ¶40, ¶41; 6. ¶34, ¶43, ¶46.; 7. ¶ 46; 8. ¶ 49; 9. ¶ 50; 10. ¶¶ 59-74; 11. Any other references to the Traffic Collision Report contained in the SAC; and 12. Prayer for damages at page 21 for punitive damages.

Plaintiff requests the Court overrule the demurrer and deny the motion to strike. Plaintiff does not oppose striking the report.

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 Guldalian entrusted his vehicle to Rush and gave Rush permission to allow others, including Smallwood to operate his vehicle. Plaintiff further alleges that Smallwood negligently operated the vehicle, resulting in his colliding with the median divider in the carpool late. The complaint also alleges that Aaron also negligently operated his own vehicle while under the influence of alcohol, driving on the wrong side of the freeway and eventually colliding with Plaintiff’s vehicle.

Aaron 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. The Court agrees that driving while under the influence of alcohol, alone 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. There must be other extenuating circumstances that make these claims rise to a level of extreme and outrageous OR a level of malice. For example, this can be shown via a series of attributable accidents or a history of drunk driving arrests. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) Stating that a Defendant has driven while under the influence previously is not sufficient to meet the requirements. The facts as pled here, which simply allege that Aaron operated a vehicle while under the influence of alcohol, do not constitute extenuating circumstances. Aaron’s job as a bartender also does not constitute extenuating circumstances. Plaintiff notes that, as a bartender, Aaron should have been more aware of the dangers associated with driving under the influence of alcohol and was acutely aware of what the signs of impairment look like. This is insufficient; most adults are aware of the dangers of drunk driving and of what the signs of alcoholic impairment are.

Plaintiff cites to the fact that Aaron violated multiple Vehicle Codes and entered the freeway on the wrong side but provides no case law to support this as a basis for an IIED claim. Plaintiff claims the facts in this case are identical to the facts in Taylor v. Superior Court (1979) 24 Cal.3d 890; this is incorrect. In Taylor, the Court found the relevant defendant had a history of alcoholism, prior arrests and convictions for drunk driving, prior accidents attributable to intoxication and acceptance of employment involving transportation of alcohol. The only equivalent claim made by Plaintiff is that Aaron had previously driven drunk—with no specific facts to support this statement. Regardless, this still does not meet the standard established by Taylor, as there is no indication of previous arrests, accidents or alcoholism that would bring this to the level of beyond the bounds tolerated by civilized society.

Additionally, an IIED claim requires a Defendant’s conduct be either directed at Plaintiff or occur in the presence of a Plaintiff of whom a Defendant is aware. There are no facts pled that establish that Aaron intended to cause harm to Plaintiff or that Aaron was aware of Plaintiff’s presence, merely conclusory statements.

The Court sustains the demurrer.

Motion to Strike

The Court finds that the facts, as pled, do not provide a basis for a claim for punitive damages. Plaintiff pleads that Aaron drove while under the influence of alcohol. That, alone, 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 impaired with no other extenuating circumstances does not rise to that level. Plaintiff’s additional fact that Aaron was driving on the wrong side of the freeway is not enough to show malice. In the absence of aggravating allegations, there is no basis for punitive damages. The Court grants the motion as to this issue.

The Court similarly grants the motion as to conclusory statements, such as “pose an extreme threat to others...” or “willful and conscious disregard as to the right of the public...” as these are legal conclusions. Furthermore, all of them are used to illustrate a basis for punitive damages, which, as articular above, the Court strikes.

The Court will not strike any mentions regarding speed, safe speed, or traveling at certain speeds. The Court also will not strike any mentions regarding Plaintiff’s consumption of alcohol or drugs, bartender experience, physical appearance after the accident, or field sobriety tests. These are all akin to factual allegations and are not conclusory legal statements. The Court denies the motion on those grounds.

Aaron also requests the Court strike the Traffic Collision Report attached to the SAC, as Plaintiff did not request judicial notice, and this would unduly prejudice a jury against Aaron. Pursuant to VC § 20013, no accident report shall be used as evidence in trial, without the demand of the person who made such a report or the Court. The Court strikes the Traffic Collision Report on the basis that neither of these parties have made such a demand, and thus it is not currently admissible as evidence. It would unduly prejudice a jury given that it is not otherwise admissible. Plaintiff does not oppose the striking of the report, and thus the Court strikes the TRC.

CONCLUSION

Defendant Samuel Alan Aaron’s Demurrer is SUSTAINED, with 30 days leave to amend.

Defendant Samuel Alan Aaron’s Motion to Strike is GRANTED, in part, with 30 days leave to amend. The Court grants the motion as to all requests for punitive damages, improper legal conclusions and the Traffic Collision Report. The Court DENIES the motion as to any requests to strike mentions of speed, alcohol, field sobriety tests, job experience, or appearance after the incident.  

            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.