Judge Jill Feeney, Case 20STCV46105 2022-09-07 Tentative Ruling

This was an action for motor vehicle negligence and general negligence arising from a vehicle-pedestrian collision which took place in December 2018. Plaintiffs Sheralyn Brake and her husband Derek Brake filed their Complaint against Defendants Mindy Rosenman and Arnold Sandlow on December 2, 2020.

Defendants demur to Plaintiffs’ FAC on the grounds that (1) the estate of Sheralyn Brake is not the proper party and Plaintiffs fail to allege sufficient facts to state a claim for the estate against Defendants, (2) Plaintiffs’ cause of action for survival fails because only the personal representative of an estate may bring a cause of action pursuant to Code Civ. Pro section 377.30, and (3) the FAC fails to allege sufficient facts to state a claim for punitive damages.

Plaintiffs do not oppose Defendant’s demurrer and concede that the Estate of Sheralyn Brake was improperly named in the FAC. Plaintiffs request leave to change the name of the plaintiff to Derek Brake, the executor of Sheralyn Brake’s estate. Plaintiffs do not oppose striking the demand for punitive damages.

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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41; 435.5.)

California Code of Civil Procedure section 377.30 provides that the decedent’s personal representative or, if none, the decedent’s successor in interest may commence a decedent’s cause of action that survives decedent’s death. (Code Civ. Proc., § 377.30; see Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.) Section 377.32 provides that a person who seeks to commence such an action as the decedent’s successor in interest must file an affidavit or declaration providing certain information, including the decedent’s name, date and place of decedent’s death, and statements regarding whether the estate has been administered and that the affiant or declarant is the successor in interest on decedent’s claim. (Id., § 377.32(a).) A certified copy of the decedent’s death certificate must also be attached to the affidavit or declaration. (Id., § 377.32(c).)

Here, the FAC substituted Decedent with the Estate of Sheralyn Brake. An estate has no capacity to sue and any action must be maintained by the personal representative. (Smith v. Cimmet (2011) 199 Cal.App.4th 1381, 1390.) Plaintiffs did not file an affidavit with a copy of Decedent’s death certificate or name a successor in interest in the FAC. The Estate of Sheralyn has no standing to bring causes of action. Thus, Defendants’ demurrer is sustained as to the issue of standing.

The Court also notes that, for a wrongful death action, all heirs must join in suit. (See¿Adams v. Superior Court (2011) 196 Cal.App.4th 71, 75 [“California courts interpret the wrongful death statutes to ‘authorize only a single action, in which all the decedent's heirs must join’ [Citations.]”]; Salmon v. Rathjens (1907) 152 Cal. 290, 294; Robinson v. Western States Gas & Electric Co. (1920),184 Cal. 401, 410.)¿There is no mention in the FAC if Decedent has any surviving children.

Plaintiffs’ request leave to amend their Complaint to name Derek Brake, the executor to Sheralyn Brake’s estate, as the new Plaintiff in this action. The Court grants leave to file a second amended complaint. Plaintiffs must file the necessary affidavit and death certificate required by Code Civ. Pro. section 377.32.

Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent but is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. (Code Civ. Proc., § 377.30 et seq.)

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. (College Hospital, 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, subd. (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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code § 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

As a rule of law, it has long been established one cannot recover punitive damages in a wrongful death claim under California law. (Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450). The California Court of Appeals in Ford held that the purpose of restricting the plaintiff in a wrongful death action to compensatory damages is to place a reasonable limit on his recovery and that the legislature feared that recovery would be excessive in cases involving death. (Ford Motor Co. v. Superior Court, supra, 120 Cal.App.3d 748, 752.)

“Defendants so carelessly, negligently and recklessly drove, maintained, controlled, operated or entrusted the use of their motor vehicle so as to cause it to stick Plaintiff, who was a pedestrian crossing the street to the sidewalk. Defendant was reversing her vehicle hitting Plaintiff, causing the bodily injuries that resulted in Plaintiff's eventual death.”

(Compl., PLD-PI-001(2).) These facts allege that Defendants negligently drove into Plaintiff as she was crossing the street. Alone, these facts do not demonstrate Defendants engaged in despicable conduct. Additionally, these facts do not demonstrate Defendants were aware of the probable dangerous consequences of their conduct, and that they willfully and deliberately failed to avoid those consequences.