Judge: Lisa R. Jaskol, Case: 21STCV03391, Date: 2023-12-27 Tentative Ruling

Case Number: 21STCV03391    Hearing Date: December 27, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows.  

BACKGROUND 

On January 27, 2021, Plaintiff Haran Jackson (“Plaintiff”) filed this action against Defendants The Hertz Corporation (“Hertz”), Lyft Inc. (“Lyft”), Eme Nkugba (“Nkugba”), and Does 1-50 for motor vehicle tort, products liability, general negligence, and negligence per se. 

On November 4, 2021, Lyft filed an answer. 

On December 16, 2021, the Court sustained Hertz’s demurrer to the second cause of action for products liability and the fourth cause of action for negligence per se with leave to amend and granted Hertz’s motion to strike Plaintiff’s request for punitive damages with leave to amend. 

On January 3, 2022, Plaintiff filed a first amended complaint against Hertz, Lyft, Nkugba, and Does 1-50 for motor vehicle tort, products liability, and general negligence.  The first amended complaint did not include a proof of service. 

On January 11, 2022, Hertz filed an answer to the original complaint. 

On August 24, 2022, the Court granted Hertz’s motion to strike the first amended complaint because Plaintiff had not served it.  The original complaint became the operative complaint. 

On September 21, 2022, the Court granted Hertz’s motion to deem admitted matters specified in its requests for admission served on Plaintiff and awarded Hertz sanctions. 

On October 19, 2023, Nkugba filed a demurrer and a motion to strike to be heard on November 27, 2023.  The Court continued the hearing to December 27, 2023.  Plaintiff has not filed oppositions. 

No trial date is currently scheduled. 

PARTY’S REQUESTS 

Nkugba requests that the Court sustain the demurrer to Plaintiff’s claim for negligence per se.  Nkugba also requests that the Court strike the punitive damages claim. 

LEGAL STANDARD 

A.      Demurrer 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

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“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .” 

(Code Civ. Proc., § 430.10, subds. (e), (f).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

B.       Motion to strike 

“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 “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).)  “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)  “Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).) 

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)  “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Ibid.)  “In ruling on a motion to strike, courts do not read allegations in isolation.”  (Ibid.) 

C.      Negligence per se 

The basic elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (4) damages.  (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.)  “The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: ‘(1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.’”  (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218, quoting Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) 

D.      Punitive damages 

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. 

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“(c) As used in this section, the following definitions shall apply: 

“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 

“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

“(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” 

(Civ. Code, § 3294, subds. (a), (c).) 

DISCUSSION 

A.   The complaint 

The complaint alleges the following: 

          On January 29, 2019, Nkugba was operating a Hertz vehicle for Lyft in Los Angeles.  While Nkugba was in the left turn lane on South Western Avenue above Interstate 10, Lyft’s mobile application (“Lyft App”) distracted Nkugba.  As a result, Nkugba and Plaintiff became involved a motor vehicle collision in which Plaintiff was injured. 

“Defendants and each of them owed Plaintiff a duty of reasonable/due care as well as statutory duties established in California Vehicle Codes, [sections] 23123, 23123.5 and 26708.” 

“All defendants knew, or should have known use of the APP by DRIVERS, including but not limited to Eme Nkugba, in the manner intended and actually required by LYFT, would be in violation of California Vehicle Code [section] 23123. All defendants knew, or should have known that use of the APP by DRIVERS, including but not limited to Eme Nkugba, in the manner intended and actually required by LYFT, would be in violation of California Vehicle Code Section 23123.5. All Defendants knew, or should have known that use of the APP by DRIVERS, including but not limited to Eme Nkugba, in the manner intended and actually required by LYFT violates California Vehicle Code Section 26708.” 

Plaintiff suffered “[p]unitive damages as the conduct of all Defendants was engaged in with oppression and/or malice, and in conscious disregard of the rights and safety of others, including but not limited to the Plaintiff herein to pursuant to Cal. Civ. Code Sec 3294.” 

B.   Nkugba’s demurrer 

Nkugba argues that Plaintiff’s claim for negligence per se fails to state facts sufficient to constitute a cause of action and is uncertain, ambiguous and unintelligible. 

In what appears to be an argument cut-and-pasted from Hertz’s demurrer, Nkugba asserts: “Analogous to the issues with products liability, the purported statutory violations against NKUGBA have nothing whatsoever to do with it and would only be applicable (if at all) against LYFT INC., and EME NKUGBA. Plaintiff contends that the statutes violated include Vehicle Code sections 23123, 23123.5, and 26708.  NKUGBA cannot be liable under any of the three sections. The first two statutes involve the use of mobile telephones while operating a motor vehicle, while the third statute prohibits 'any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows' with a few exceptions – again, there is no way that NKUGBA (a fictitious corporate entity) could be 'responsible' for such a violation.”  (Demurrer p. 2.) 

The complaint is fairly read as alleging that Nkugba, the driver -- not a fictitious corporate entity -- violated these Vehicle Code provisions while using the Lyft App.  The allegations are sufficiently clear to allow Nkugba to answer the complaint.  The Court overrules the demurrer to the negligence per se claim. 

C.      Nkugba’s motion to strike 

“ ‘In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.’ ” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193 (Today’s IV), quoting Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Section 3294, subdivision (a) provides: ‘In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.’ ”  (Ibid., quoting Civ. Code, § 3294, subd. (a).) 

“The statute expressly defines the terms—malice, oppression, and [fraud]—for the purposes of determining the viability of the claim for punitive damages.”  (Today’s IV, supra, 83 Cal.App.5th at p. 1193.)  “Malice is defined as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ ” (Ibid., quoting Civ. Code, § 3294, subd. (c)(1).) “Oppression is defined as “ ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ ” (Ibid., quoting Civ. Code, § 3294, subd. (c)(2).)  “Fraud is defined as “ ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ ” (Ibid., quoting Civ. Code, § 3294, subd. (c)(3).) 

“In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages.” (Today’s IV, supra, 83 Cal.App.5th at p. 1193, citing Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 (Brousseau).) “Punitive damages may not be pleaded generally.”  (Ibid., citing Brousseau, 73 Cal.App.3d at p. 872.) 

Plaintiff generally alleges that all Defendants acted “with oppression and/or malice, and in conscious disregard of the rights and safety of others.”  The complaint contains no specific allegations that Nkugba intended to harm Plaintiff or acted in conscious disregard of Plaintiff’s rights and safety.  Therefore, the Court grants Nkugba’s motion to strike the punitive damage claim against him.  

CONCLUSION 

The Court OVERRULES Defendant Eme Nkugba’s demurrer to Plaintiff Haran Jackson’s claim for negligence per se.

The Court GRANTS Defendant Eme Nkugba’s motion to strike Plaintiff Haran Jackson’s punitive damage claim against Defendant Eme Nkugba with 30 days leave to amend. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.