Judge Jill Feeney, Case 21STCV30226 2023-03-07 Tentative Ruling

This is an action for negligence, assault and battery, and intentional infliction of emotional distress arising from a vehicle collision which took place in August 2019. Plaintiff Francisco Cortes filed his Complaint against Yarnel Hazamin Banuelos, Frederico J. Banuelos, Martha Banuelos, and Miriam Guillarmina Torres on August 16, 2021.

Torres moves for judgment on the pleadings on the grounds that the FAC fails to allege facts sufficient to state a cause of action against her. Plaintiff’s FAC alleges facts that Torres conspired to conceal Yarnel Banuelos’s involvement in the subject collision. Torres argues that the FAC does not allege that Torres’s conduct resulted in any harm to Plaintiff.

Plaintiff concedes that the FAC does not plead facts sufficient to support the first three causes of action against Torres. However, Plaintiff argues that the FAC does plead facts sufficient to state the fourth cause of action for IIED against Torres because Torres’s conduct concealing the crime caused Plaintiff further emotional distress.

Torres argues that she cannot be deemed liable for a tort committed by Yarnel before the alleged conspiracy began. Torres alleges that she may only be deemed liable for harm that occurred after the accident when she made her statement to LAPD. Torres also argues that the FAC fails to show that Torres expressly agreed to inflict emotional distress on Plaintiff. Torres also argues that Plaintiff could not have experienced emotional distress because of the misstatements to LAPD because he was not conscious and aware of the statements at the time they were made.

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply. Thus, a motion by defendant can be made on the ground that the court “lacks jurisdiction of the subject of one or more of the causes of action alleged”, or the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., section¿438(c).) A defendant may file a motion for judgment on the pleadings at any time after the time to demur to the complaint has passed. (Code Civ. Proc., sections 430.40, subd. (a), 438, subd. (f)(2).)

If a moving party has already demurred to the complaint and the demurrer was overruled, a motion for judgment on the pleadings may only be made on the same grounds as the previous demurrer if there has been a material change in applicable case law. (Code Civ. Proc., section 438, subd. (g)(1).) A motion may be made if the moving party did not demur to the complaint on the same grounds alleged in the motion. (Code Civ., proc., section 438, subd. (g)(2).)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

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, section 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, section 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.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

Defendant Torres moves for judgment on the pleadings on the grounds that the FAC fails to state facts sufficient to support Plaintiff’s causes of action for negligence, assault, battery, and intentional infliction of emotional distress (“IIED”) against Torres. Plaintiff concedes that the facts in the FAC are insufficient to support the causes of action for negligence, assault, and battery against Torres. Accordingly, Torres’s motion is granted as to those three causes of action.

“‘Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.’… A civil conspiracy ‘must be activated by the commission of an actual tort.’” (AREI II Cases (2013) 216 Cal.App.4th 1004, 1021.) “To support a conspiracy claim, a plaintiff must allege the following elements: ‘(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.’” (Id. at p. 1022.)

“A participant in the conspiracy ‘effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.’” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1291, 188 Cal.Rptr.3d 623.) The doctrine is one of vicarious liability; each member of the conspiracy becomes liable for all acts done by others pursuant to the conspiracy. (Id.) “As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves. ‘The effect of charging . . . conspiratorial conduct is to implicate all . . . who agree to the plan to commit the wrong as well as those who actually carry it out.’” (Wyatt v. Union Mortgage Co. (1979)24 Cal.3d 773, 784.) “Furthermore, the requisite concurrence and knowledge ‘may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.’ Tacit consent as well as express approval will suffice to hold a person liable as a coconspirator.” (Id.)

The elements for a cause of action for 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) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Here, the FAC alleges that a few minutes after Defendant Yarnel Banuelos (“Banuelos”) hit Plaintiff and fled the scene, he called his girlfriend, Torres. (FAC, ¶32(c).) One and a half hours later, Torres appeared at the LAPD Devonshire Station and reported the vehicle involved in the collision stolen after leaving the engine running in the driveway. (FAC, ¶32(d).) Torres also reported that Banuelos could not be contacted because he was working a construction job in Beverly Hills and that she and Banuelos were the only people who had driven the vehicle. (Id.) The next day, Torres appeared at LAPD’s Valley Traffic Division and reported the vehicle stolen, reporting that she left the engine running while she was in the bathroom. (FAC, ¶32(e).) Torres also reported that the entire family used the vehicle except for Banuelos because his license was suspended. (Id.) Defendants intentionally conspired to conceal Banuelos’s conduct to deny Plaintiff the opportunity to obtain criminal and civil justice, causing him emotional distress. (FAC, ¶62.)

Facts alleging that Torres made false statements to LAPD regarding the whereabouts of her vehicle are sufficient to show Torres’s conduct was extreme and outrageous. It is reasonable to infer that because Banuelos called Torres shortly after the accident and Torres then reported the vehicle stolen just one and a half hours after the accident that Torres and Banuelos planned to conceal his criminal conduct by reporting the vehicle stolen. These facts sufficiently show conduct beyond threats, annoyances, or other trivialities because Banuelos and Torres acted to prevent LAPD from discovering Banuelos’s conduct. It is also reasonable to infer from these facts that Torres and Banuelos concealed Banuelos’s conduct with reckless disregard for the probability of causing Plaintiff emotional distress. The FAC also alleges that Plaintiff suffered emotional distress as a result of Torres and Banuelos’s actions concealing his conduct.

The facts alleged sufficiently show that Torres conspired with Banuelos to conceal his conduct because Banuelos contacted Torres shortly after the collision. Torres then committed wrongful conduct by making misstatements to LAPD. Finally, as a result of Torres’s actions, Plaintiff suffered emotional distress. For the purposes of a motion for judgment on the pleadings, these facts are sufficient to support a cause of action for IIED under a theory of conspiracy.

Torres argues that Plaintiff could not have suffered emotional distress because Plaintiff was not conscious and did not know of Torres’s misstatement to LAPD. However, these facts are extraneous to the FAC and must not be considered. Moreover, the FAC does state Plaintiff suffered emotional distress as a result of Torres’s actions concealing Banuelos’s conduct, which is sufficient at this pleading stage.

Torres also argues that the FAC fails to state that she expressly agreed to inflict emotional distress on Plaintiff. However, it is reasonable to infer from the facts that Torres agreed to make misstatements to LAPD to conceal Banuelos’s conduct in the subject collision. Because Torres agreed to perform a wrongful act, the law places civil liability for the resulting damage on Torres. Moreover, the facts are sufficient to show that Torres acted with reckless disregard for the probability of causing Plaintiff severe emotional distress.

Torres also argues that Plaintiff’s argument that she aided and abetted Banuelos in furtherance of a tort fails because she had no duty to protect Plaintiff from emotional distress and because she did not make a misstatement directly to Plaintiff. However, the elements of IIED do not require that a tortfeasor make a statement directly upon a plaintiff. As discussed above, the facts here are sufficient to show that Torres’s acted with reckless disregard for the potential of causing severe emotional distress. Torres also argues that the facts do not show Plaintiff suffered severe emotional distress. However, the facts alleged are sufficient to infer that Plaintiff’s emotional distress was severe.

Torres also moves to strike portions of the FAC related to punitive damages. However, unlike a motion for judgment on the pleadings, motions to strike must be made in the time allowed to respond to the pleading. Here, it has been more than one year since Plaintiff filed his FAC. Therefore, the MTS is untimely. The Court declines to exercise its discretion in hearing this motion to strike.

Even if the motion was timely, the only remaining cause of action as to Torres is the cause of action for IIED. As previously discussed, the facts in the FAC are sufficient to show that Torres engaged in extreme and outrageous conduct by making false statements to LAPD to conceal Banuelos’s involvement in the subject collision. Such facts would also be sufficient to show Torres acted with malice because making misstatements to LAPD to conceal Banuelos’s conduct constitutes despicable conduct.