Judge: Frank M. Tavelman, Case: 22BBCV00770, Date: 2023-03-10 Tentative Ruling

Case Number: 22BBCV00770    Hearing Date: March 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS: 

On October 17, 2022, Gayane Gevorkyan (“Plaintiff”) filed suit against Hamlet Eskandari (“Defendant”), alleging injuries from an April 25, 2022 hit and run vehicle collision. The Complaint contains two causes of action: (1) Negligence, and (2) Intentional Infliction of Emotional Distress.  

HISTORY: 

On February 1, 2023, Defendant filed a demurrer and motion to strike portions of the Complaint. Opposition was due February 27, 2023, and Plaintiff filed her Opposition on February 28, 2023. Defendant filed his reply on March 3, 2023.

RELIEF REQUESTED:

Defendant demurs to the second cause of action of Intentional Infliction of Emotional Distress (“IIED”).

Defendant moves to strike the following portions of Plaintiff’s Complaint:

(1) Page 6 of the Complaint, Paragraph 29, lines 4-5 requesting punitive damages; and (2) Plaintiff’s Prayer for punitive damages at page 6, paragraph 4.

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

 A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and, or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motion to Strike

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike out 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.” (C.C.P. § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

II.                 MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least five days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)

Upon review of the record the Court is satisfied the meet and confer requirements have been met. (Thomas Decl. ¶ 2.)

III.              MERITS

Demurrer

Defendant demurs to the second cause of action for IIED on grounds that it fails to state sufficient facts pursuant to C.C.P. § 430.10(e).

The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

For conduct to be outrageous it must be so extreme as to exceed all bounds of conduct typically tolerated in a civilized community. (Id.) This conduct must be of a nature which is especially calculated to cause and does cause, mental distress. (Chang v. Lederman (2009) 172 Cal.App.4th 67.) When reckless disregard is the theory of recovery, defendant must have directed his conduct at, and in conscious disregard of the threat to, a particular individual. (Christensen v. Superior Court (1991) 54 Cal.3d 868.)

Defendant argues that Plaintiff does not allege facts that support the first element of an IIED claim. Defendant claims Plaintiff has not alleged sufficient facts that Defendant’s conduct was extreme and outrageous. Defendant argues that Plaintiff does not allege any facts which indicate the Defendant intended his conduct to cause emotional distress. Defendant also argues that Plaintiff does not allege any facts that Defendant knew Plaintiff was injured and thereafter fled the scene with the intent to inflict emotional harm on Plaintiff.

Plaintiff argues that the factual allegations in the Complaint do satisfy the first element of an IIED claim. Plaintiff alleges that Defendant’s conduct was extreme and outrageous by virtue of exceeding all bounds usually tolerated in a civilized society. (Compl. ¶25.) Plaintiff argues that “The Negligent Drivers knew that they had been involved in a crash that injured Plaintiff and/or knew from the nature of the crash that it was probable that another person had been injured.” (Compl. ¶ 22.) Plaintiff then alleges that Defendant’s failure to stop and provide aid, call the police, exchange information, or speak with police constitutes extreme and outrageous conduct. (Id. ¶ 23.) Plaintiff argues that Defendant should have known it was probable someone was injured. (Compl. ¶ 22.)

The Court does not find that Plaintiff’s facts speak to conduct which is especially calculated to cause mental distress. Plaintiff alleges that Defendant was involved in a head on collision and thereafter fled the scene, but it does not follow that the purpose of his flight was to cause Plaintiff emotional distress.

The Court does not find that Plaintiff has alleged facts that Defendant directed his conduct, flight, at Plaintiff particularly with conscious disregard of the threat of emotional distress. Nor has Plaintiff pled facts sufficient that Defendant fled the scene with the intention of causing Plaintiff emotional distress Plaintiff may be able to allege facts sufficient to constitute extreme and outrageous conduct under either theory of recovery, but it has not done so here. As such, the Court SUSTAINS the demur to the second cause of action with 20 days’ leave to amend.

Motion to Strike Punitive Damages

Cal 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.”

Defendant asks the court to strike all requests for punitive damages from the FAC. Plaintiff’s request for punitive damages stems from the allegations of IIED. (Compl. ¶29) The Court has granted demurrer as to the cause of action for IIED with leave to amend and as such, the motion to strike punitive damages from the Complaint is mooted in its entirety.

IV.              CONCLUSION

The demurrer to the second cause of action is sustained with leave to amend. The motion to strike as to Plaintiff’s claims for punitive damages is moot.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Hamlet Eskandari’s Demurrer and Motion to Strike came on regularly for hearing on March 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER AS TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT IN ITS ENTIRETY.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE

IT IS SO ORDERED. 

DATE:  March 10, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles