Judge Kerry Bensinger, Case 21STCV41760 2023-02-07 Tentative Ruling

On November 12, 2021, plaintiff Andrea Lebron (“Plaintiff”) filed this action against defendant Sandra Moran (“Defendant”) arising from a collision between a car and a motorized scooter that occurred on June 7, 2021. Plaintiff alleges that Defendant turned her motor vehicle into Plaintiff’s lane of travel and collided into her. (SAC, ¶ 11.) Plaintiff swerved and was ejected from the scooter, causing her to strike her head and face into the rear of another vehicle on the street. (Ibid.)

On November 23, 2022, following the Court sustaining a demurrer to the First Amended Complaint (“FAC”), Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging causes of action for negligence, gross negligence and negligence per se, and intentional infliction of emotional distress (“IIED”).

On December 12, 2022, Defendant filed the instant demurrer and motion to strike portions of the SAC. Defendant demurs to Plaintiff’s cause of action for IIED and moves to strike Plaintiff’s request for punitive damages. Plaintiff opposes.

“A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

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., § 435, subd. (b)(1).) The court may, upon a 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); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, 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. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) Defense counsel declares she met and conferred with Plaintiff’s counsel on December 12, 2022 by telephone. This is sufficient to satisfy the meet and confer requirement.

The elements of intentional infliction of emotional distress are: (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress. (So v. Shin (2013) 212 Cal.App.4th 652, 671.) “With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [internal quotes and citations omitted].)

In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 the court found that a hit and run cannot give rise to damages unless the fact of the hit and run caused additional damages above and beyond the accident itself. Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run. It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run. For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood, death, etc. If, however, the accident causes immediate soft tissue damage, no amount of aid would reduce or minimize the future damages, and the act of hitting and running would not give rise to additional damages.

The Court previously stated that fleeing the scene of an auto accident may be reprehensible and outrageous if Plaintiff was apparently injured and required aid. (11/7/22 Minute Order.) Here, Plaintiff alleges that Defendant proceeded to stop her vehicle, exited her vehicle, and walked to and looked at Plaintiff while she was lying motionless in the street, saw that was fading in and out of consciousness, severely bleeding from her face, and beginning to sustain significant facial swelling. (SAC, ¶14.) Defendant knew Plaintiff needed immediate medical assistance as she watched Plaintiff’s condition worsening as Plaintiff continued to lay motionless in the street, bleeding from her face, and showing severe facial swelling, yet fled and failed to call for medical assistance. (SAC, ¶15.) This is sufficient to allege outrageous and reprehensible conduct.

Plaintiff further alleges that after watching Defendant drive away, Lebron was left feeling abandoned and in terror that no help would arrive, resulting in probable worsening of her injuries and possibly death. (SAC, ¶42.) This is sufficient to allege emotional distress. Further, the allegations together sufficiently allege additional damages due to the hit and run because Plaintiff’s injuries may have gotten worse due to lack of medical assistance.

Defendant argues that Plaintiff cannot recover punitive damages against Defendant because none of the facts alleged in the SAC rise to the level of fraud, oppression, malice, or despicable conduct in conscious disregard for the probable dangerous consequences.

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘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.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] 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. v. Superior Court (1994) 8 Cal.4th 704, 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.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

As the Court already found Defendant’s conduct to be outrageous and despicable by fleeing the scene and not calling for medical assistance after walking over to Plaintiff on the floor, seeing the extent of Plaintiff’s injuries, i.e., lying motionless in the street, facial bleeding, and severe facial swelling, the Court finds that Plaintiff has alleged sufficient facts to support a claim for punitive damages.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court