Judge Katherine Chilton, Case 23STLC00250 2023-04-20 Tentative Ruling

Judge: Katherine Chilton, Case: 23STLC00250, Date: 2023-04-20 Tentative Ruling

Case Number: 23STLC00250 Hearing Date: April 20, 2023 Dept: 25

PROCEEDINGS: DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant Amy Alice Andelson

RESP. PARTY: Plaintiff Mehrdad Safvati

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

Defendant Amy Alice Andelson’s Demurrer to the Complaint’s second cause of action for violation of Motor Vehicle Code § 22517 is SUSTAINED without leave to amend.

Defendant Amy Alice Andelson’s Demurrer to the Complaint’s third cause of action for fraud is SUSTAINED with leave to amend.

Defendant’s Motion to Strike Paragraphs 8 and 9, and the second and third causes of action is DENIED. Defendant’s Motion to Strike Paragraph C of the Prayer of Relief seeking punitive damages and “any and all references to punitive and/or exemplary damages” is GRANTED with leave to amend.

SERVICE:

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on April 7, 2023. [ ] Late [ ] None

REPLY: Filed on April 12, 2023. [ ] Late [ ] None

ANALYSIS:

I. Background

On January 13, 2023, Plaintiff Mehrdad Safvati (“Plaintiff”) filed an action against Defendant Amy Alice Andelson (“Defendant”) for negligence, violation of Motor Vehicle Code § 22517, and fraud.

On March 15, 2023, Defendant filed the instant Demurrer with Motion to Strike (“Demurrer” and “MTS”) to Plaintiff’s Complaint. Plaintiff filed Oppositions to the Demurrer and MTS on April 7, 2023. Defendant filed Replies to Plaintiff’s Oppositions on April 12, 2023.

II. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(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).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

III. Discussion

Defendant demurs to the Complaint’s second and third causes of action for violation of Motor Vehicle Code § 22517 and fraud for failure to state a cause of action. (Demurrer p. 2.) Defendant requests that the Court sustain the Demurrer without leave to amend. (Ibid. at p. 3.)

A. Meet and Confer

Defense counsel states that on March 16, 2023, he met and conferred with Plaintiff telephonically regarding the Demurrer and MTS and “discussed each of the grounds basis, and authority presented” in the moving papers. (Rodriguez Decl. ¶ 4.) Plaintiff did not agree to withdraw the second and third causes of action, as requested by defense counsel during the conversation. (Ibid.) Thus, the parties did not reach an agreement and Defendant filed the Demurrer and MTS. (Ibid. at ¶ 7.)

The Court finds that Defendant has satisfied the meet and confer requirement.

B. Second Cause of Action – Violation of Motor Vehicle Code § 22517

a. Plaintiff’s Allegations

Plaintiff Mehrdad Safvati and Defendant Amy Alice Andelson are individuals residing in Los Angeles, County, CA. (Compl. ¶¶ 1-2.) On November 19, 2022, Plaintiff was driving in the right lane of a two-lane street, when Defendant, “while sitting in her parked vehicle, inattentively opened her car door and struck plaintiff’s vehicle.” (Ibid. at ¶ 4.) Defendant “was negligently parked unreasonably far from the curb compared to all other cars parked on the same street.” (Ibid.) Furthermore, Plaintiff had the right of way, as § 22517 “places liability” on Defendant because she opened her car door and struck Plaintiff’s vehicle. (Ibid. at ¶¶ 5.) Given that “she inattentively opened her car door when it was not reasonably safe to do so, and was done in such a way as to interfere with the movement of traffic,” she “violated Motor Vehicle Code § 22517.” (Ibid. at ¶¶ 6, 15.)

As a result, Plaintiff “has suffered damages.” (Ibid. at ¶ 6.) Moreover, Defendant “has misrepresented to her motor vehicle insurance provider that she did not cause the accident and that ‘nothing happened’ which has caused further harm to Plaintiff. (Ibid. at ¶¶ 8-9.)

b. Defendant’s Demurrer

Defendant demurs to the second cause of action for failure to state a cause of action against Defendant. (Demurrer p. 6.) Defendant argues that the second cause of action for violation of Vehicle Code § 22517 “is redundant and needlessly duplicative of Plaintiff’s First Cause of Action for ‘Negligence.’” (Ibid.) Defendant cites to relevant cases for the assertion that a cause of action should be dismissed if it is redundant and based on the same underlying allegations and relief as another cause of action. (Ibid.)

Moreover, the violation of the Vehicle Code “may create a rebuttable presumption of [sic] based on the doctrine of negligence per se, [but] it is not a separate cause of action from general negligence.” (Ibid. at p. 7.)

Given that Plaintiff has already asserted a claim for negligence and the violation of the Vehicle Code “is premised on the same negligence claim arising out of a motor vehicle incident,” Defendant’s Demurrer to the second cause of action should be sustained. (Ibid.)

c. Plaintiff’s Opposition

Plaintiff opposes Defendant’s Demurrer to the second cause of action on the ground that the cause of action is “sufficiently pled” and “overwhelmingly sufficient to apprise defendants of the bases upon which they are being sued.” (Oppos. pp. 2-4.)

Plaintiff cites to Vehicle Code § 22517 and argues that he has pleaded sufficient facts as to each element of the claim. (Ibid. at pp. 4-5.)

Moreover, the second cause of action is not redundant or duplicative simply because the same allegations support the first cause of action for negligence. (Ibid.)

d. Defendant’s Reply

In her Reply to Plaintiff’s Opposition, Defendant reiterates that Plaintiff’s first cause of action for negligence “already includes the allegations of violation of Vehicle Code § 22517.” (Reply p. 4.) Thus, the second cause of action “is redundant and needlessly duplicative…[and] not based on different facts, and it does not offer a unique viable theory upon which to premise liability.” (Ibid.)

Moreover, Defendant argues that Plaintiff does not cite any authority to support its arguments that additional allegations require a separate cause of action and that violation of the Vehicle Code gives rise to an independent cause of action. (Ibid. at pp. 4-5.) Defendant cites to cases for its assertion that liability based on the Vehicle Code “may create a rebuttable presumption of [sic] based on the doctrine of negligence per se” but it does not create a “separate cause of action from general negligence.” (Ibid. at p. 5.) Plaintiff has not cited any authority in opposition, showing that violation of the Vehicle Code is a separate cause of action. (Ibid.)

e. Analysis

“The essential elements of a cause of action for negligence are: (1) the defendant's legal duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3)¿injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) Owing a duty of care to the plaintiff is an indispensable prerequisite to the imposition of liability for negligence. (Richards v. Stanley (1954) 43 Cal.2d 60, 63.) A duty is an “obligation, recognized by the law, requiring the actor to conform to certain standard of conduct, for the protection of others against unreasonable risks.” (Hilyar v. Union Ice Co. (1955) 45 Cal. 2d 30, 36-37.)

“The doctrine of negligence per se does not establish tort liability. Rather, it merely codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. [Citation]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) “Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. [Citation.] Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.” (Ibid.)

Here, Plaintiff has stated a separate cause of action for violation of California Vehicle Code § 22517 in addition to his claim for negligence. Section 22517 states:

No person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.

An alleged violation of § 22517 may create a presumption supporting the finding of negligence in the instant action; however, on its own it cannot stand as a cause of action.

For this reason, Defendant’s demurrer as to the second cause of action is sustained without leave to amend. Plaintiff’s allegations as to the violation of Vehicle Code § 22517 may remain in the Complaint in support of Plaintiff’s cause of action for negligence.

C. Third Cause of Action – Fraud

a. Plaintiff’s Allegations

Plaintiff incorporates the allegations stated above for the third cause of action for fraud. Moreover, Plaintiff alleges that Defendant “made a false representation that harmed plaintiff” as she “represented to her Motor Vehicle Insurance carrier that she did not cause the accident and that ‘nothing had happened.’” (Compl. ¶¶ 17-18.) Defendant’s “representation was false” and she knew that it “was false when she made it.” (Ibid. at ¶ 20.) She intended “State Farm insurance rely on her representation” and “State Farm reasonably relied on Defendant Amy Andelson’s misrepresentation.” (Ibid. at ¶¶ 21-22.)

b. Defendant’s Demurrer

Defendant demurs to the third cause of action for fraud for failure to plead the elements with specificity. (Demurrer p. 9.) Plaintiff does not allege “facts showing how, when, where and by what means the fraud was committed” or that the misrepresentation was made to him. (Ibid.) Moreover, Plaintiff does not know what Defendant communicated to her insurer and is basing the allegations on speculation. (Ibid.) Defendant argues that she “must be free to communicate her perception of the alleged incident to her insurer, under the protections of the attorney-client privilege” and is “not required to adopt Plaintiff’s assessment.” (Ibid.)

Plaintiff’s allegations also fail to show that Defendant intended to induce reliance or that Plaintiff reasonably relied on the misrepresentation and acted as a result. (Ibid. at pp. 10-11.)

Finally, Plaintiff has not pleaded any facts showing “a causal relationship between an alleged misrepresentation and the harm claimed to have resulted therefrom.” (Ibid. at p. 12.)

c. Plaintiff’s Opposition

In his Opposition, Plaintiff merely reiterates the allegations in the Complaint and states that he has “sufficiently pled facts to support a cause of action for Fraud.” (Oppos. pp. 5-6.)

d. Defendant’s Reply

In the Reply to Plaintiff’s Opposition, Defendant reiterates the arguments made in the Demurrer regarding Plaintiff’s failure to state facts with specificity, sufficient for a fraud cause of action.

e. Analysis

A claim for fraud must plead all of the following elements: (1) misrepresentation; (2)¿knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Particularity requires facts that show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12¿Cal.4th 631, 645.)

Here, the Court finds that Plaintiff’s allegations are conclusory and severely deficient. Plaintiff speculates about statements that Defendant made to her insurance carrier and does not allege specific facts about her knowledge of the falsity of these statements or her intent in making them. Furthermore, Plaintiff does not show how he justifiably relied on these alleged statements or how he suffered damages as a result of Defendant’s conduct.

Accordingly, the Court SUSTAINS Defendant’s Demurrer as to the third cause of action for fraud. The Court finds that there is a reasonable possibility of curing the defect and grants Plaintiff leave to amend the third cause of action for fraud.

D. Motion to Strike

a. Defendants’ Motion to Strike

In her Motion to Strike, Defendant moves to strike the following portions of the Complaint.

1. Paragraph 8, page 2, lines 13-14, in their entirety;

2. Paragraph 9, page 2, line 15, in its entirety;

3. The entire Second Cause of Action for “Violation Motor Vehicle Code Section 22517”, inclusive of Paragraph 14 through and including 15, page 2, line 24 through page 3, line 2;

4. The entire Third Cause of Action for “Fraud”, inclusive of Paragraph 16 through and including Paragraph 22, found on page 3, lines 4 through 16;

5. Paragraph C of the Prayer for Relief, inclusive of the words: “For punitive damages”, found on page 3, line 22;

6. Any and all references to punitive and/or exemplary damages.

(MTS p. 2.)

Defendant brings this Motion to Strike “irrelevant, false and improper claim, allegations, and prayer for punitive and/or grounds presented on demurrer.” (Ibid. at pp. 3-4.)

Moreover, Defendant argues that the Complaint does not state facts sufficient to warrant an imposition of punitive damages, as Plaintiff’s cause of action for fraud is defective. (Ibid. at p. 5.) The Complaint does not contain allegations supporting malice, oppression, or fraud as defined in California Civil Code § 3294. (Ibid. at pp. 6-7.)

b. Plaintiff’s Opposition

In his Opposition to the MTS, Plaintiff argues that he has properly pleaded a cause of action for fraud, “which makes punitive damages appropriate here.” (Oppos. pp. 2, 3-4.)

Moreover, the Complaint properly pleads a cause of action for violation of Vehicle Code Section 22517, thus, Defendant’s MTS should be denied. (Ibid. at p. 3.)

c. Defendants’ Reply

In her Reply, Defendant reiterates the arguments made in the Motion to Strike.

d. Analysis

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike 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.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.) Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5(a).)

“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.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A request for punitive damages may be made pursuant to Civil Code §¿3294(a) which provides that “[i]n 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.”

Under the statute, malice is defined as “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” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc. § 3294(c)(1), (c)(2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

As discussed above, Defendant has satisfied the meet and confer requirement through her Counsel’s declaration.

Here, the Court cannot grant Defendant’s Motion to Strike portions of the Complaint on the basis that they irrelevant, false, improper, or not drawn in conformity with the laws, as motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) For this reason, Defendant’s Motion to Strike Paragraphs 8 and 9, and the second and third causes of action is DENIED.

Regarding Defendant’s Motion to Strike references to punitive damages, the Court finds that Plaintiff has not presented facts sufficient to show that he is entitled to punitive damages. It appears that Plaintiff’s primary basis for seeking punitive damages is his cause of action for fraud. As discussed above, the Court sustains Defendants’ Demurrer as to the third cause of action for fraud. Thus, Defendant’s Motion to Strike Paragraph C of the Prayer of Relief seeking punitive damages and “any and all references to punitive and/or exemplary damages” is GRANTED.

As the Court has sustained Defendant’s Demurrer to the third cause of action for fraud with leave to amend, Defendant’s Motion to Strike is GRANTED with leave to amend.

IV. Conclusion & Order

For the foregoing reason,

Defendant Amy Alice Andelson’s Demurrer to the Complaint’s second cause of action for violation of Motor Vehicle Code § 22517 is SUSTAINED without leave to amend.

Defendant Amy Alice Andelson’s Demurrer to the Complaint’s third cause of action for fraud is SUSTAINED with leave to amend.

Moving party is ordered to give notice.