Judge Kerry Bensinger, Case 22STCV19140 2023-02-10 Tentative Ruling

On June 10, 2022, plaintiffs Sung Su Kim ("Kim") and Susan Oh-Kim (collectively, "Plaintiffs") filed this action against defendants Arman Ali Tirmizi aka Arman Ali Tirmizzi ("Tirmizi") and Fatima Nizami (collectively, "Defendants"). Plaintiffs allege that on November 16, 2020, Kim was riding a motorcycle when he was hit by a motor vehicle operated by Tirmizi.

On December 15, 2022, the court sustained Defendants’ demurrer to the third cause of action for intentional infliction of emotional distress ("IIED") in the original complaint with leave to amend.

On December 29, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”). Defendants now demur to the IIED claim and move to strike portions of the IIED claim, specifically: (1) Paragraph 43 and (2) Plaintiffs prayer for punitive damages arising from the Third Cause of Action for IIED.

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.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

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).)

David Tetzlaff, counsel for Defendants, declares that on January 3, 2023, he called Plaintiffs’ counsel, left a voice message, and sent an email but received no response from Plaintiffs’ counsel to these attempts to meet and confer. (Tetzlaff Decl., ¶ 4.) The meet and confer requirement is satisfied.

To recover for intentional infliction of emotional distress the plaintiffs must allege "outrageou conduct, which is conduct so extreme that it goes beyond all possible bounds of decency. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) “Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. The defendant’s conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.)

Here, the court previously sustained Defendants’ demurrer to Plaintiff’s IIED claim because “[t]he fact that Tirmizi fled the scene of the collision does not show that he acted with conduct that is so extreme as to exceed all bounds of what is usually tolerated in a civilized community.” Thus, the court found that Plaintiffs “failed to plead with specificity that Tirmizi’s actions following the collision caused Plaintiff to suffer additional or greater damage than those already caused by the collision. [Citation.]” (12/15/22 Minute Order.)

A review of Plaintiffs’ IIED claim as pleaded in the FAC reveals that Plaintiffs have included new allegations in support of their IIED claim. The allegations include Defendants “knew, or in the exercise of reasonable care should have known, that they collided into Plaintiff’s motorcycle, knocking Plaintiff off his motorcycle and causing Plaintiff to slam into the ground sustaining severe injuries, since the collision was to the front driver’s side of Defendant’s vehicle that struck the rear of Plaintiff’s motorcycle and where Plaintiff and his motorcycle lost control and fell to the ground in front of and directly in Defendants’ … unobstructed view” (FAC ¶ 32); that Defendants “saw, felt, observed, acknowledged and/or was/were aware that he/they caused Plaintiff, SUNG SU KIM, to lose control of Plaintiff’s motorcycle, which knocked Plaintiff, SUNG SU KIM, off the motorcycle, causing Plaintiff to land violently onto the ground;” and further, that Defendants “with an intent to vex, injure, or annoy, or with a willful and/or conscious disregard of the Plaintiff’s rights, safety or well-being chose to flee from the scene of the collision” (FAC ¶ 33). These allegations, however, and others not included here, merely show that Defendants caused the collision with Plaintiff and fled the scene thereafter. Plaintiffs fail to set forth any allegations to show Defendants’ actions “caused [Kim] to suffer additional or greater damage than those already caused by the collision.”

Accordingly, the demurrer to Plaintiffs’ Third Cause of Action for IIED is SUSTAINED.

Plaintiffs request leave to amend to cure the deficiencies of the claim. However, Plaintiffs fail to demonstrate that there is a reasonable possibility of amendment. Therefore, leave to amend the Third Cause of Action for IIED is DENIED.

Because Defendants’ demurrer is sustained, their motion to strike, which exclusively sought to strike portions of the Third Cause of Action and its corresponding prayer for punitive damages, is moot. To the extent Plaintiffs argue for punitive damages under the second cause of action, the court directs Plaintiffs to the previous ruling sustaining Defendants’ demurrer to the original complaint: “Even if proven as true, the allegation that Tirmizi was involved in a vehicle collision does not support the imposition of punitive damages. Accordingly, leave to amend the Complaint to add a claim for punitive damages is not granted at this time.” (12/15/22 Minute Order.)

Defendants’ demurrer to Plaintiffs’ Third Cause of Action for IIED is SUSTAINED without leave to amend.

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