Judge: Kerry Bensinger, Case: 22STCV29256, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV29256    Hearing Date: March 15, 2023    Dept: 27
























      CASE NO.: 22STCV29256




Dept. 27

1:30 p.m.

March 15, 2023



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





Hon. Kerry Bensinger

Judge of the Superior Court



[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.