TENTATIVE RULING

Defendants Nicholas Hugh Gay Mitchell and Dorine G. Kramer’s Demurrer to Plaintiffs’ Complaint is SUSTAINED without leave to amend as to the sixth cause of action and otherwise OVERRULED.

Defendants Nicholas Hugh Gay Mitchell and Dorine G. Kramer’s Motion to Strike Portions of Plaintiffs’ Complaint is GRANTED without leave to amend as to Plaintiffs Nasrin Kheyrinejad-Bina, individually and as successor in interest to and on behalf of the Estate of Mohammad Reza Bina, and Behnam Bina’s claims and prayer for punitive damages.

Defendants Nicholas Hugh Gay Mitchell and Dorine G. Kramer shall file and serve an answer to Plaintiffs Nasrin Kheyrinejad-Bina, individually and as successor in interest to and on behalf of the Estate of Mohammad Reza Bina, and Behnam Bina’s Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Plaintiffs Nasrin Kheyrinejad-Bina, individually and as successor in interest to and on behalf of the Estate of Mohammad Reza Bina, and Behnam Bina may amend their complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendants Nicholas Hugh Gay Mitchell and Dorine G. Kramer to give notice. 

REASONING

Request for Judicial Notice

Defendants Nicholas Hugh Gay Mitchell and Dorine G. Kramer (“Defendants”) request judicial notice of the Department of Motor Vehicles Vehicle Registration dated April 22, 2024, identifying Defendant Mitchell as the registered owner of a Kia BTM. Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivision (c), for the purposes of this motion only.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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).) The court may also strike 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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) 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. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Allegations Against Defendant Dorine G. Kramer

Defendants argue that Defendant Dorine G. Kramer should be dismissed from this action because Defendant Mitchell, not Defendant Kramer, was the registered owner of the vehicle that allegedly struck Decedent Mohammad Reza Bina (“Decedent”).

In the complaint, Plaintiffs Nasrin Kheyrinejad-Bina, individually and as successor in interest to and on behalf of the Estate of Mohammad Reza Bina, and Behnam Bina (“Plaintiffs”) allege that Decedent was attempting to cross the street at Palms Boulevard and Vinton Avenue in Los Angeles on April 28, 2022 as a pedestrian when he was struck by a vehicle operated by Defendant Nicholas Hugh Gay Mitchell and owned and insured by Defendant Dorine G. Kramer. (Compl. ¶¶ 23-24.) Defendants provide a document from the Department of Motor Vehicles showing that a Kia BTM is registered to Defendant Mitchell, but this does not show that Defendant Kramer did not own the vehicle that struck Decedent, as there are no allegations about the make or model of the vehicle in the complaint, and even if there were, Plaintiffs would also have had to allege the VIN number in the complaint for the Court to conclude this vehicle is not owned by Defendant Kramer, which did not occur here. The demurrer is, therefore, OVERRULED on this ground.

Sixth Cause of Action: Gross Negligence

“Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for gross negligence the plaintiff must also allege conduct by the defendant involving either want of even scant care or an extreme departure from the ordinary standard of conduct. Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640, citations, quotation marks, and ellipsis omitted.) There is no distinct cause of action for gross negligence apart from negligence. (Continental Insurance Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 328-330.)

In the sixth cause of action, Plaintiffs allege that Defendant Mitchell drove while speeding, without his headlights on, and failure to yield, which represents an extreme departure from the ordinary standard of care. (Compl. ¶ 105.) This claim does not appear to differ from the other claims in any meaningful way, i.e., the allegations in this claim are also included in the claims for general negligence and negligence per se. Accordingly, Defendants’ demurrer to the sixth cause of action is SUSTAINED without leave to amend.

While Defendants have stated they demur to other claims, there is no argument for any other claim, such that the demurrer is OVERRULED in all other respects.

Motion to Strike

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Defendants move to strike Plaintiffs’ allegations seeking punitive damages. The only remaining basis for punitive damages is found in paragraph 99, seeking punitive damages in a survival action, but the basis for any such damages is unclear. Plaintiffs state they do not oppose the motion, but they ask that the motion be entered “without prejudice” so they may assert a claim for punitive damages later if they wish. There is no basis to enter such an order. Accordingly, Defendants’ motion to strike is GRANTED as to Plaintiffs’ claims and prayer for punitive damages.