Judge: Kerry Bensinger, Case: 22STCV29256, Date: 2023-03-15 Tentative Ruling
Case Number: 22STCV29256 Hearing Date: March 15, 2023 Dept: 27
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
Plaintiff, vs.
ANDRANIK ALIKYAN, et al.,
Defendants. |
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[TENTATIVE] ORDER RE: DEFENDANTS’ DEMURRER
TO THE THIRD CAUSE OF ACTION FOR “INTENTIONAL TORT” IN PLAINTIFF’S FIRST
AMENDED COMPLAINT AND MOTION TO STRIKE
Dept. 27 1:30 p.m. March 15, 2023
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I.
BACKGROUND
On September 8, 2022, plaintiff Ashley Webb (“Plaintiff”)
filed this action against defendants Andranik Alikyan and Mariam Panadzhyan
(“Panadzhyan”) (collectively, “Defendants”) arising out of a motor vehicle
collision on December 20, 2020.
On
December 12, 2022, Plaintiff filed a First Amended Complaint (“FAC”) asserting
causes of action for (1) motor vehicle, (2) general negligence, and (3) intentional
tort.
On
February 16, 2023, Defendants filed this demurrer to the third cause of action
for the “intentional tort” of intentional infliction of emotional distress
(IIED),[1]
arguing the FAC (1) does not sufficiently allege “extreme and outrageous
conduct” and (2) fails to establish that Plaintiff suffered severe emotional
distress.
Plaintiff
filed an opposition and Defendants filed a reply.
II.
LEGAL STANDARDS
A.
Standard for Demurrer
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.)
A
demurrer may be brought if insufficient facts are stated to support the cause
of action asserted. (Code Civ. Proc., §
430.10, subd. (e).) “A demurrer for
uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612,
616.)
Where
the complaint contains substantial factual allegations sufficiently apprising
defendant of the issues it is being asked to meet, a demurrer for uncertainty
will be overruled or plaintiff will be given leave to amend. (Williams
v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
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.)
B.
Intentional Infliction of Emotional
Distress
“A
cause of action for intentional infliction of emotional distress exists when
there is ‘(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 emotional distress;
and (3) actual and proximate causation of the emotional distress by the
defendant’s outrageous conduct.’ A
defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all
bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended
to inflict injury or engaged in with the realization that injury will
result.’” (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050.)
A
plaintiff “must plead specific facts to establish severe emotional distress
resulting from defendant’s conduct.” (Michaelian
v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1113-14.) “Only emotional distress of ‘such substantial
quantity or enduring quality’ that an individual in civilized society should
not be expected to endure it constitutes severe emotional distress.” (Angie M. v. Superior Court (1995) 37
Cal.App.4th 1217, 1227, citing Kiseskey v. Carpenters’ Trust for So.
California (1983) 144 Cal.App.3d 222, 231.) Mere conclusory allegations that plaintiff
sustained “injury to his health, strength, and emotional condition” is not
sufficient to establish severe emotional distress. (Michaelian, supra, 50
Cal.App.4th at pp. 1113-14.)
III.
DISCUSSION
A.
Meet and Confer
Before
filing a demurrer, the demurring party shall meet and confer in person or by
telephone 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).) Defendants’ counsel has satisfied this
requirement. (Declaration of Irving Feng,
¶ 2.)
C. Factual Allegations of the Third Cause of
Action
The FAC alleges, in relevant part, as follows: “Defendant
Mariam Panadzhyan was making a left turn … when she failed to stay within her
lane and hit Plaintiff []. Plaintiff []
was left shocked and injured from the first impact .… [] Panadzhyan INITIALL
[sic] stopped and admitted fault to the collision….then illegally entered her
vehilce [sic] and fled the scene … without providing … information as required
by the law.” (FAC, ¶ IT-2.)
Plaintiff
further alleges that “Panadzhyan knew or should have known that Plaintiff []
was distressed and injured when she fled the scene. []Panadzhyan engaged in outrageous conduct
when she knew she had caused a collision resulting in both bodily injury and
property damage” (FAC, ¶ IT-3.) “Plaintiff [] suffered severe emotional
distress for reasons that include, but are not limited to, concern about her
injuries, paying for the damage to her vehicle, … for medical care,
uncertaintly [sic] as to whether [] Panadzhyan’s identity would ever be
ascertained, and unawareness of the severity and extent of her own
injuries.” (Complaint, ¶ IT-5.)
D. The Demurrer
Defendants
argue that Plaintiff fails to state a cause of action for IIED because the FAC sets
forth only conclusory allegations which are insufficient to establish that (1) Defendants’
actions were “extreme and outrageous,” and (2) Plaintiff suffered severe
emotional distress.
The
point is well taken. The fact that Panadzhyan
fled the scene of the collision does not show that she acted with conduct that
is so extreme as to exceed all bounds of what is usually tolerated in a
civilized community. Plaintiff fails to
plead with specificity that Panadzhyan’s actions following the collision caused
Plaintiff to suffer additional or greater damage than those already caused by
the collision. (See Karl v. C.A. Reed
Lumber (1969) 275 Cal.App.2d 358.) Nor
does Plaintiff plead with specificity as to the severity of her emotional
distress. That Plaintiff was concerned
about the extent of her injuries and paying for the damage to her car and for
medical care more closely resemble injury to “health, strength, and emotional
condition” allegations that the Court of Appeal in Michaelian found as unsupportive
of an IIED claim. (See Michaelian,
supra, 50 Cal.App.4th at pp. 1113-14.)
Plaintiff cites Karl, supra, 275
Cal.App.2d 358, Taylor v. Superior Court (1979) 24 Cal.3d 890, 895 and Lakin
v. Watkins Associated Industries (1993) 6 Cal.4th 644 in support of her
IIED claim. These cases do not
necessitate a different result. In Karl,
the Court observed that “failure to stop and render aid after an
injury-caused accident may constitute an independent wrong irrespective of any
responsibility for the injury.” (Karl,
275 Cal.App.2d at p. 361.) As stated
above, Plaintiff fails to plead with specificity that Panadzhyan’s actions
following the collision caused Plaintiff to suffer additional or greater damage
than those already caused by the collision.
In Taylor, the Court held
that punitive damages are recoverable in a personal injury action against an
intoxicated driver. The instant case
does not set forth any allegations that Panadzhyan caused the motor vehicle
collision while intoxicated.
In
Lakin, the plaintiff was awarded punitive damages for intentional
infliction of emotional distress when she proved at trial that the defendant provided
false identifying information and false insurance information after a motor
vehicle collision. (Larkin, 6
Cal.4th at p. 649.) Because the facts in
Larkin are not similar to those herein, Larkin is inapposite.
In
sum, Plaintiff fails to allege sufficient facts to establish that Panadzhyan’s
conduct rises to the level of extreme or outrageous conduct or that Plaintiff
has suffered severe emotional distress as a result of the December 20, 2020
incident.
IV.
MOTION TO STRIKE
Defendants
also seek to strike the following portions of Plaintiff’s complaint:
1. Prayer for
punitive damages, page 3, paragraph 14(a)(2);
2. Attachment 1/2,
paragraph IT-3
3. Attachment 2/2,
paragraphs IT-10, and IT-11
4. Any and all
other reference to malice, oppression, or fraud;
5. Any and all
other reference to punitive or exemplary damages.
Defendants
seek to strike portions of Plaintiff’s complaint that appear in or are based
upon Plaintiff’s third cause of action for intentional tort. Based on the Court’s ruling on Defendants’
demurrer, the motion to strike is moot.
V.
CONCLUSION
The
demurrer to the third cause of action in Plaintiff’s complaint is SUSTAINED.
Plaintiff is ordered to file and
serve a Second Amended Complaint within 30 days of this ruling.
Defendants are ordered to file and
serve their responsive pleading within 30 days of service of the Second Amended
Complaint.
Defendants’ motion to strike is
moot.
Moving
parties to give notice.
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.
Dated this 15th day of March 2023
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Hon. Kerry
Bensinger Judge of the
Superior Court
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[1] Although
Plaintiff’s third cause of action is simply titled “intentional tort,” the
parties treat the third cause of action as an IIED claim. The Court examines the demurrer to the third
cause of action accordingly.