Judge: Michael E. Whitaker, Case: 22STCV00592, Date: 2022-08-05 Tentative Ruling

Case Number: 22STCV00592    Hearing Date: August 5, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

August 5, 2022

CASE NUMBER

22STCV00592

MOTION

Demurrer to First Amended Complaint

MOVING PARTY

Defendant Gina Skibar

OPPOSING PARTY

Plaintiff Armando Jose Mendoza

 

MOTION

 

Plaintiff Armando Jose Mendoza sued defendants Gina Skibar (“Skibar”), City of Montebello (“City”), and Thomas Charles Hebert (“Herbert”) based on injuries Plaintiff alleges he sustained when Herbert, during the course and scope of his employment with City, ran over Plaintiff while he was sleeping in Montebello City Park.  Skibar demurs to the fourth and fifth causes of action in the first amended complaint.  Skibar also moves to strike the fourth and fifth causes of action as well as Plaintiff’s claim for punitive damages in the first amended complaint.  Plaintiff opposes the motion and demurrer.

 

ANALYSIS

 

  1. DEMURRER

 

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

 

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

 

  1. Public Entity Employee Immunity

     

    Skibar first argues that she is immune from liability for the fourth cause of action for intentional infliction of emotional distress (“IIED”) and fifth cause of action for negligent misrepresentation under the Government Tort Claims Act.  Specifically, Skibar argues her actions were discretionary when she visited Plaintiff in the hospital such that her conduct falls within the scope of public entity employee immunity.  In opposition, Plaintiff argues that the first amended complaint alleges Skibar’s conduct was, instead, part of her ministerial duties and therefore, not subject to immunity.

     

    Under Government Code section 820, “[e]xcept as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”  (Gov. Code, § 820, subd. (a).)  Government Code section 820.2 provides, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Finally, per Government Code section 822.2, “[a] public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligence or intentional, unless he is guilty of actual fraud, corruption or actual malice.”

     

    Here, Plaintiff’s fourth and fifth causes of are premised upon Skibar’s conduct of visiting Plaintiff in his hospital room one day after the underlying incident and allegedly  “fraudulently obtain[ing] a signature from him on a release, in an attempt to suppress his legal rights and take advantage of Plaintiff…, which he was in his most vulnerable condition.”  (First Amended Complaint, ¶ 11.)  Per paragraph 31 of the first amended complaint, Skibar “at the relevant time, was acting pursuant to her ministerial duties with the CITY OF MONTEBELLO.”  (First Amended Complaint, ¶ 31.)  Thus, for pleading purposes, immunity for the discretionary acts of government employees under Section 820.2 does not bar Plaintiff’s claims against Skibar.

     

    With respect to the fifth cause of action for negligent misrepresentation, Section 822.2 would provide immunity to Skibar for either a negligent or intentional misrepresentation, unless she is guilty of actual fraud, corruption, or malice.  Whether Skibar is guilty of actual fraud, corruption, or malice is not a decision to be made by the Court on demurrer.  Nevertheless, the Court examines the fifth cause of action to determine whether it alleges facts sufficient to constitute a cause of action for fraud or to establish corruption or malice on the part of Skibar.

     

    A plaintiff must allege fraud with particularity. “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) To survive demurrer, the plaintiff must plead facts that “show how, when, where, to whom, and by what means the representation was tendered.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.)

     

                Here, the first amended complaint alleges, in relevant part,

     

    Defendants GINA SKIBAR represented to Plaintiff ARMANDO JOSE MENDOZA, while he was in the hospital, one day after being ran over twice, that $6,000.00 would fairly compensate him for his injuries and that they would set him up in a hotel room to recover, one they evicted him from as soon as he did not cash the check.

     

    $6,000.00 will not fairly compensate Plaintiff ARMANDO JOSE MENDOZA for his serious injuries, and was nothing more than Defendants GINA SKIBAR attempt to exploit Plaintiff while he was in his most vulnerable state.

     

    Defendants GINA SKIBAR may have honestly believed that $6,000.00 would have fairly compensated Plaintiff ARMANDO JOSE MENDOZA for being ran over twice, but had no reasonable grounds to do so, as evidence by the fact that they coerced Plaintiff to sign a release in his hospital room.

     

    Defendants GINA SKIBAR intended that Plaintiff ARMANDO JOSE MENDOZA rely on the representation that they would take care of him and that $6,000.00 was a sufficient amount of money to fairly compensate him for being ran over twice and suffering severe injuries

     

    While in his hospital room, Plaintiff ARMANDO JOSE MENDOZA did reasonably rely on Defendants GINA SKIBAR representation to his detriment.

     

    (First Amended Complaint, ¶¶ 83-87.) 

     

    The Court finds Plaintiff fails to plead the requisite elements of the cause of action in full, factually and specifically, nor facts to establish malice on the part of Skibar such that she may be found guilty of fraud, corruption, or malice and outside the protection of Section 822.2.  In particular, the Court finds Plaintiff’s allegations fail to establish that Skibar made a representation with knowledge of its falsity.  Instead, Plaintiff alleges Skibar may have believed the veracity of her representation but “had no reasonable grounds to so.”  (First Amended Complaint, ¶ 85.)  Accordingly, the Court sustains the demurrer to the fifth cause of action.

     

  2. IIED

     

Skibar demurs to the fourth cause of action for IIED for failure to state facts sufficient to constitute a cause of action.  Specifically, Skibar once again argues that Section 822.2 provides immunity for her conduct, and Plaintiff has not otherwise alleged the requisite elements for IIED.  In opposition, Plaintiff asserts the allegations in the first amended complaint are sufficient and Skibar is not immune from the claim.

 

To prevail on the IIED cause of action, a plaintiff must prove: “(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 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is outrageous when “it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid. [cleaned up].) Further, the defendant’s conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 1051 [cleaned up].)

 

Here, the first amended complaint alleges, in part,

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR, and DOES 31-40 conduct caused him to suffer severe emotional distress.

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR and DOES 31-40’S conduct was outrageous.

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR and DOES 31-40’s intended to cause him emotional distress.

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR and DOES 31-40’s acted with disregard of the probability that he would suffer emotional distress.  

 

Plaintiff ARMANDO JOSE MENDOZA suffered severe emotional distress as a result of Defendants GINA SKIBAR, and DOES 31-40’S conduct.

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR, and DOES 31-40’s conduct was a substantial factor in causing his severe emotional distress.

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR and DOES 31-40 abused a position of authority by coercing him to sign a release, one day after being ran over twice, while he was still in his hospital room, by assuring him that they had his best interests in mind. Defendants GINA SKIBAR and DOES 31-40 moved Plaintiff out of his hospital room, where he could get care for his injuries, and instead set him up in a hotel room. When they realized that Plaintiff ARMANDO JOSE MENDOZA would not cash the check, they promptly evicted him from his hotel room. Plaintiff, ARMANDO JOSE MENDOZA was experiencing homelessness at the time of this loss because his parents had recently died. Defendants GINA SKIBAR, and DOES 31-40 attempted to exploit Plaintiff ARMANDO JOSE MENDOZA’ injuries and conditions to their financial advantage while he was at him most vulnerable.

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR and DOES 31-40 knew he was particularly vulnerable to emotional distress, as he was in his hospital room at the time of the confrontation, recovering from being ran over twice

 

Plaintiff ARMANDO JOSE MENDOZA alleges that Defendants GINA SKIBAR and DOES 31-40 knew that emotional distress would likely result from their conduct and gave little, no thought, or actually did not care, that the severe emotional distress was the likely effect of their conduct.

 

(First Amended Complaint, ¶¶ 60-67, 69.) 

 

The Court finds Plaintiff’s allegations to be conclusory and otherwise insufficient to establish extreme and outrageous conduct by Skibar with reckless disregard of the probability of causing emotional distress.  The Court therefore sustains the demurrer to the fourth cause of action.

 

  1. MOTION TO STRIKE

 

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

 

  1. Fourth and Fifth Causes of Action

     

    Skibar advances the same arguments in support of the motion to strike the fourth and fifth causes of action as those in her demurrer.  Consequently, because the Court sustains the demurrer to both the fourth and fifth causes of action, the Court denies the motion to strike the same as moot.

     

  2. Punitive Damages

     

    In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

     

    (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, subd. (c)(1)-(3), emphasis added.) 

     

    Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

     

                Here, Skibar argues Plaintiff fails to allege facts to show fraud, oppression, or malice on the part of Skibar.  In his opposition, Plaintiff does not present any argument as to whether the first amended complaint sufficiently pleads fraud, oppression, or malice on the part of Skibar to support a claim for punitive damages. 

     

    As noted above, the Court finds Plaintiff’s allegations fail to establish “malice” on the part of Skibar in which she is alleged to have engaged in “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  The Court therefore grants the motion to strike.

     

  1. LEAVE TO AMEND

 

Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

 

Here, Plaintiff has failed to meet his burden with respect to his claim for punitive damages. Plaintiff’s opposition to the motion to strike neither requests leave to amend nor demonstrates how the first amended complaint can be successfully amended.

 

CONCLUSION AND ORDER

 

Therefore, the Court sustains Skibar’s demurrer to the fourth and fifth causes of action in the first amended complaint, with leave to amend.  The Court grants Skibar’s motion to strike Plaintiff’s claim for punitive damages, without leave to amend, and denies Skibar’s motion to strike the fourth and fifth causes of action as moot. 

 

The Court orders Plaintiff to file and serve an amended complaint in compliance with this Court’s ruling within 20 days of the hearing.

 

Skibar is ordered to provide notice of the Court’s orders and file a proof of service of such.