Judge Lynne M. Hobbs, Case Number: 23STCV02219, Date: 2023-09-26 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV02219, Date: 2023-09-26 Tentative Ruling

Case Number: 23STCV02219 Hearing Date: December 14, 2023 Dept: 30

BRANDON DARNELL SAVAGE, et al. vs ANGEL RICARDO ESCALANTE, et al.

TENTATIVE

Defendant’s demurrer to the fourth cause of action for IIED is SUSTAINED without leave to amend. As a result, Defendants’ motion to strike is DENIED as MOOT. Moving party to give notice.

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Kelsey Kohnen which satisfies the meet and confer requirements. (Code Civ. Proc. §§ 430.41, & 435.5.)

Discussion

Demurrer

Defendant demurs to the cause of action for Intentional Infliction of Emotional Distress in the SAC. Defendant contends that Plaintiff has failed to allege any extreme or outrageous conduct. Defendants also contend that Plaintiff fails to allege sufficient facts to show intent to cause, or reckless disregard of the probability of causing, emotional distress. Lastly, Defendant argues that Plaintiff fails to provide a factual basis as to her allegation that she suffered extreme emotional distress.

“The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant; (2) the intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, internal quotations omitted.) For conduct to be outrageous it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Severe emotional distress means . . . emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Nat. Life Ins. Co. (1970) 10 Cal.App.3d 376.)

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Id.) While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Id. at 494.)

A defendant negligently striking someone with a vehicle and then fleeing, while not admirable or acceptable, is not inherently outrageous conduct beyond reasonable decency. Whether this act would rise to the level of outrageous conduct depends on the context and facts of the case. As noted before by this Court, fleeing the scene of an auto accident may be reprehensible and outrageous if the Plaintiff was apparently injured and required aid. (See Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 [fleeing the scene of an accident act only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run].) “One who negligently injures another and renders him helpless is bound to use reasonable care to prevent any further harm which the actor realizes or should realize threatens the injured person.” (Id.)

Here, the SAC alleges that: “Defendant fled from the scene of the collision in an effort to escape liability, all the while knowing that Plaintiff was injured and in need of emergency medical care.” (SAC, ¶ 40.) “Defendant was actually aware that Plaintiff was seriously injured and required immediate emergency medical care, as Defendant was able to see Plaintiff and see the damage to Plaintiff’s vehicle.” (Id., ¶ 13.) “Being forced to chase down Escalante instead of waiting as calmly as possible for emergency personnel to arrive and attend to him, exacerbated Plaintiff’s injuries and compounded his pain and suffering. Even while experiencing severe pain and severe emotional distress, including suffering, anguish, fright, horror, nervousness, grief anxiety, worry, shock, humiliation, and shame, Plaintiff continued to endure the said suffering, pain, and discomfort to chase after Defendant’s vehicle.” (SAC, ¶ 41.)

“Moreover, Plaintiff’s injuries got worse and he sustained additional injuries because he was forced to drive his damaged vehicle, while injured in this collision, for approximately 6 minutes while Defendant Escalante was aggressively trying to flee the accident and their liability on public, city streets in the City of Los Angeles, County of Los Angeles.” (Id., ¶ 42.)

The demurrer is sustained. First, the allegations that Plaintiff suffered additional injury are conclusory. How did chasing Defendant exacerbate Plaintiff’s injuries? Additionally, they are inconsistent with the allegation that Plaintiff was injured and required emergency medical aid. If Plaintiff is giving chase to Defendant due to his hit and run, then Plaintiff would not be rendered helpless and in need medical aid in the first place. Lastly, the allegation that Defendant fled from the scene of the collision in an effort to escape liability, all the while knowing that Plaintiff was injured and in need of emergency medical care, would be sufficient to show a reckless disregard of the probability of causing emotional distress. The SAC merely alleges, however, that Defendant was aware that Plaintiff required medical aid, because of the damage to the car. This is insufficient to show Defendant was aware Plaintiff required medical aid. Simply because the car is damaged does not mean Plaintiff was injured. While it also alleges Defendant was aware because he saw Plaintiff, this is also insufficient. He saw Plaintiff do what? Did he see Plaintiff screaming in agony while holding his back due to pain? Did he see Plaintiff bleeding? Additionally, the allegations relating to severe emotional distress are insufficient to meet the high bar to establish severe emotional distress. (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress]; see also Hughes (2009) 46 Cal.4th at 1051.) Plaintiff simply lists a laundry list of words in an effort to allege this element without any factual explanation. This alleged distress does not rise to the level of “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Id.)

Based on the foregoing, Defendant’s demurrer as to the fourth cause of action for IIED is SUSTAINED. A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Plaintiff has not met that burden.

Motion to Strike

Defendant also moves to strike the allegations regarding punitive damages, arguing Plaintiff failed to allege any acts of oppression, fraud, or malice.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

As the demurrer to the fourth cause of action for IIED is sustained, the motion to strike punitive damages arising out of the fourth cause of action is DENIED as MOOT.