Judge Edward B. Moreton, Jr., Case Number: 23SMCV05724, Date: 2024-05-30 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 23SMCV05724, Date: 2024-05-30 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

J. SCOTT RUNIA, et al.,

Plaintiffs,

ARTYOM POGHOSYAN, et al.,

Defendants.

Case No.: 23SMCV05724

Hearing Date: May 30, 2024

[TENTATIVE] ORDER RE:

DEFENDANTS’ DEMURRER TO AND

MOTION TO STRIKE FIRST AMENDED

COMPLAINT

This case arises from a traffic accident. Plaintiffs J. Scott Runia and Melody Hagedorn were driving home from dinner when their car was struck by Defendants Artyom Poghosyan, Victoria Pinchasov and Suren Khandanyan’s car. Plaintiffs allege they had completed a lane change when their car was struck by Defendants’ car which was attempting to change into the same lane.

The operative complaint alleges claims for (1) negligence, (2) gross negligence, (3) negligence per se and (4) willful misconduct/battery.

This hearing is on Defendants’ demurrer and motion to strike the complaint. Defendants argue that (1) the willful misconduct/battery claim fails because Plaintiffs have not alleged Defendants intended to cause harm to Plaintiffs, (2) the claim for gross negligence fails because this is a simple traffic accident involving two cars merging into the same lane and does not involve an extreme departure from what a reasonable careful person would do in the same situation as required to prove gross negligence, and (3) Plaintiffs’ claim for punitive damages should be stricken because they have not alleged fraud, malice or oppression.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike 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. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Defendants submit the Declaration of Christopher Patton which attests the parties met and conferred by telephone, but the conference took place on April 22 and April 23, 2024, less than five days before the demurrer and motion to strike was filed (on April 25, 2024). Notwithstanding, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer. (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).)

Willful Misconduct/Battery Claim

Defendants demur to the willful misconduct/battery claim on the ground Plaintiffs have not alleged an intent to harm. The Court disagrees as to Defendant Khandanyan but agrees as to the other Defendants.

The essential elements of a cause of action for battery are: (1) defendant touched plaintiff or caused plaintiff to be touched with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching. (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

The meaning of “contact with another’s person” does not require that one bring any part of his own body in contact with another’s person. (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 881.) Cases have found that a pedestrian struck by a car can bring a claim for battery. (See, e.g., Scharton v. Wieland Abbreviated Title (Nov. 27, 2018) 2018 Cal. Super. LEXIS 42868¿*4 (denying motion for summary adjudication of assault and battery claim arising from car-pedestrian accident); Robinson v. Boeke (Aug. 23, 2022) 2022 Cal. Super. LEXIS 48462¿*5 (plaintiff’s allegation that defendant run her over with his car was sufficient to support a claim for battery).) By extension, a car striking another car can be the basis of a battery claim. By bringing his car into contact with Plaintiffs’ car, thereby injuring Plaintiffs, Defendant Khandanyan “touched” Plaintiffs.

As to the element of intent, “[i]n an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613, internal citation omitted.) “The general rule is that every person is presumed to intend the natural and probable consequences of his acts…If the cause of action is an alleged battery committed in the performance of an unlawful or wrongful act, the intent of the wrongdoer to injure is immaterial.” (Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.) “[I]f the defendant did an illegal act which was likely to prove injurious to another, he is answerable for the consequence which directly and naturally resulted from the conduct, even though he did not intend to do the particular injury which followed.” (Id.) “Where defendant is guilty of gross or culpable negligence, this may supply the element of intent, so as to create a liability for an unintentional injury which is the natural proximate consequence of defendant’s conduct.” (Id.)

In Ashcraft, the plaintiff was to undergo a blood transfusion and expressly told the defendant that he would only consent to the procedure if blood from a relative was used. The doctor intentionally did not use family blood for the procedure, and Plaintiff contracted HIV as a result. The Court held that, even though the Defendant did not intend to infect the Plaintiff with HIV, Defendant could be held liable for battery. (228 Cal.App.3d at 613.)

Here, Plaintiffs allege Khanyandan was driving on the wrong side of the road, speeding, and attempting to pass Plaintiff from the left from an opposing lane of traffic, and choosing to avoid colliding with the median and instead colliding with Plaintiffs’ car. Khanyandan intentionally engaged in “unlawful or illegal acts” (multiple violations of the Vehicle Code) that “were likely to be injurious” to Plaintiffs. It is immaterial that Khandanyan did not intend to injure Plaintiffs with his car. Khandanyan intentionally used his car illegally in a way that made contact with Plaintiffs’ car, making harm to Plaintiffs substantially certain.

As to the other Defendants (Poghosyan and Pinchasov), they were not driving the car, and Plaintiffs have not alleged any facts which would support a finding that these Defendants intended to harm or offend Plaintiffs. Accordingly, the Court sustains the demurrer to Plaintiffs’ claim for willful misconduct/battery as to Poghosyan and Pinchasov and overrules the demurrer as to Khanyandan.

Defendants demur to Plaintiffs’ claim for gross negligence on the ground Plaintiffs have not shown an extreme departure from the ordinary standard of conduct and the claim for gross negligence adds nothing new and is therefore duplicative. The Court agrees with the second ground.

There is no distinct cause of action for gross negligence apart from negligence. (Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 328-330 (court properly denied motion to amend to add claim for gross negligence).) As Plaintiffs have already alleged a claim for negligence, their claim for gross negligence adds nothing new and is therefore duplicative.

Accordingly, the Court sustains the demurrer to Plaintiffs’ claim for gross negligence.

Defendant argues that this is a simple negligence claim for which punitive damages are not recoverable. The Court agrees as to Defendants Poghosyan and Pinchasov but disagrees as to Defendant Khandanyan.

Civil Code § 3294(a) authorizes the recovery of punitive damages in non-contract cases “where it is proven by clear and convincing evidence that the defendant has been guilty of malice, oppression or fraud.

(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 party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

Civ. Code § 3294(c)(1)-(3).

“Despicable conduct” that rises to the level of supporting an award of punitive damages against a defendant is that which is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people” and has been described as “conduct…having the character of outrage frequently associated with a crime.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“Conscious disregard” means “the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Hoch v. Allied-Signal, Inc. (1994) 25 Cal.App.4th 1269, 1287.) To be liable for punitive damages, the defendant must “have actual knowledge of the risk of harm it is creating, and in the face of the knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.” (Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 742.)

Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051.) “The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.” (Tomaselli, 25 Cal.App.4th at 1287.) “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Id.)

Here, Khandanyan’s multiple violations of the Vehicle Code (driving on the wrong side of the road, speeding, reckless driving, and making an unsafe lane change from the wrong side of the road so as to crash into the driver’s side of Plaintiff’s car) support a finding of “extreme indifference” to and “conscious disregard” of Plaintiffs’ safety. As alleged in the FAC, Khandanyan was aware of the probable dangerous consequences of his conduct, and he willfully and deliberately failed to avoid those consequences.

Plaintiffs have also alleged specific facts sufficient to demonstrate the “despicable conduct” required for alleging malice and oppression. A jury could conclude that the nature and extent of Khandanyan’s Vehicle Code violations in his operation of his car is conduct “[having] the character of outrage frequently associated with a crime.” (Tomasselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 (emphasis added); citing Taylor v. Sup. Ct. (1979) 24 Cal.3d 890,894.)

Accordingly, the Court denies the motion to strike Plaintiffs’ claim for punitive damages as to Khandanyan but grants the motion to strike as to Poghosyan and Pinchasov, who are not alleged to have engaged in any conduct that was malicious, oppressive or fraudulent.

Plaintiffs seek sanctions pursuant to Code Civ. Proc. § 128.5 because they argue Defendants’ demurrer and motion to strike are wholly and completely baseless. To seek sanctions under Code Civ. Proc. § 128.5, Plaintiffs must file a separate noticed motion. (Code Civ. Proc. §128.5(f)(1)(A) (“A motion for sanctions under this section shall be made separately from other motions or requests…”).) Plaintiffs cannot seek such sanctions in an opposition to a demurrer.

Moreover, where the bad faith action or tactic is the making or filing of a motion, § 128.5 contains a 21 day safe harbor provision. Section 128.5(f)(1)(B) provides that “[i]f the alleged action or¿tactic is the making or opposing of a written¿motion … that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in¿Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” Plaintiffs did not comply with the 21 day safe harbor provision.

In any event, the Court does not conclude Defendants’ demurrer and motion to strike were made in bad faith. The Court sustained the demurrer in part on the gross negligence claim and as to Defendants Poghyosyan and Pinchasov. The Court also granted the motion to strike as to Defendants Poghyosyan and Pinchasov. Accordingly, Defendants’ demurrer and motion to strike were partly successful and were not, as Plaintiffs claim, entirely baseless.