Judge: Michael E. Whitaker, Case: 22STCV26415, Date: 2022-12-12 Tentative Ruling

Case Number: 22STCV26415    Hearing Date: December 12, 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

MOTION

Plaintiff Armen Yarian (Plaintiff) sued Defendant Bruce Itami (Defendant) based on an auto versus pedestrian incident.  Defendant demurs to the fourth cause of action for intentional infliction of emotional distress (IIED), and prayer for punitive damages, in Plaintiff’s Complaint.  Defendant also moves to strike Plaintiff’s claim and prayer for punitive damages.  Plaintiff opposes the motion and demurrer.  Defendant replies.

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.)  

    

   1. Intentional Infliction of Emotional Distress

       

      Here, Defendant first demurs to Plaintiff’s fourth cause of action for intentional infliction of emotional distress (“IIED”) for failure to state facts sufficient to constitute a cause of action.  To prevail on the IIED cause of action, Plaintiffs 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 engages in with the realization that injury will result.”  (Id. at p. 1051 [cleaned up].)  

       

      Defendant contends Plaintiff fails to allege that Defendant engaged in outrageous conduct because Plaintiff has not plead facts that establish extreme and outrageous conduct with the intention of causing emotional distress, nor has Plaintiff pled facts to establish Plaintiff’s severe or extreme emotional distress. 

       

      In opposition Plaintiff argues she has sufficiently plead the elements for IIED by proffering allegations that Defendant immediately fled the scene of the incident after knocking Plaintiff to the ground with his car.  Here Plaintiff alleges in pertinent part against Defendant:

       

• On August 18, 2020, Plaintiff Armen Yarian parked his vehicle on Kenneth Road in Glendale, California. As Mr. Yarian exited his vehicle, locked the door, and started walking toward the front of his vehicle to go around and onto the sidewalk, Defendant, while traveling eastbound on Kenneth Road, suddenly and unexpectedly struck Mr. Yarian with the side passenger mirror of his Chevy Suburban, knocking Mr. Yarian down. Immediately thereafter, Defendant fled the scene of the collision leaving Mr. Yarian injured and shocked.
• Further as a direct and proximate result of Defendant’s conduct of fleeing from the scene of the collision, Plaintiff suffered damages, such as, financial hardship, emotional distress, and oppression.
• By virtue of Defendant’s operation of a motor vehicle in the State of California, Defendant owed Plaintiff a duty to act in a lawful and safe manner while driving on public streets. Defendant also owed Plaintiff a duty to immediately stop and identify himself to Plaintiff after a collision and to render aid to Plaintiff who sustained injuries because of the incident described above.
• Notwithstanding, Defendant’s duty to Plaintiff, Defendant acted with conscious disregard of the rights or safety of others, including that of Plaintiff, while operating his vehicle, as described above.
• As a direct and proximate result of Defendant’s intentional conduct of fleeing from the accident scene, Plaintiff has suffered severe emotional distress, anxiety, pain and suffering, nervousness, medical expenses, future medical expenses, financial burdens, and attorneys’ fees, such that an ordinary, reasonable person would be unable to cope with the serious emotional distress.
• Defendant had a duty to not cause emotional harm to Plaintiff by his conduct. The wrongful acts and omissions of Defendant caused Plaintiff severe emotional distress.

(See Complaint, ¶¶ 9, 13, 34, 35, 36, 38, 39.)

Thus, the Court finds Plaintiff alleges facts to establish Defendant engaged in the outrageous conduct of fleeing the scene of the collision with intention of causing, or reckless disregard of the probability of causing, emotional distress to Plaintiff.  For pleading purposes, this is sufficient to support Plaintiff’s claim for IIED.

In reply, Defendant points to facts established in the subject traffic collision report and Plaintiff’s demand letter to assert that Plaintiff did not actually suffer any extreme emotional distress as a result of Defendant immediately fleeing the scene after the collision.  As these facts are found outside of the Complaint and have not been subject to judicial notice, the Court disregards Defendant’s arguments. 

1. Punitive Damages

    

   Second Defendant demurs to Plaintiff’s prayer for punitive damages arguing Plaintiff allegations in are vague, ambiguous, and fail to state a claim sufficient to constitute a cause of action for punitive damages against Defendant.   The Court notes that punitive damages are merely incidental to a cause of action, and can never constitute the basis thereof, they are not subject to a demurrer.  (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.)

    

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.)

    

   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”].) 

    

   In Taylor v. Superior Court, the California Supreme Court held:  “We consider whether punitive damages are recoverable in a personal injury action brought against an intoxicated driver.  As will appear, we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892 [cleaned up].)  The California high court further held that “[o]ne who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, “such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.”  (Id. at p. 899.)  But the California high court also stated, “Although the circumstances in a particular case may disclose similar wilful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.”  (Id. at pp. 899-900, emphasis added.) 

    

   Defendant moves to strike Plaintiff’s claim and prayer for punitive damages.  Defendant argues that aside from conclusory allegations, Plaintiff fails to allege oppression, fraud, or malice on the part of Defendant to support a claim for punitive damages.  In opposition, Plaintiff argues that the allegations of Defendant immediately fleeing the scene after hitting Plaintiff with his vehicle is sufficiently pleads Defendant’s conscious disregard of the safety of Plaintiff.  (See Complaint, ¶¶ 9, 13, 34, 35, 36, 38, 39.)

    

   The Court finds the Complaint alleges malice on the part of Defendant.  In particular, Plaintiff’s allegations in the Complaint that Defendant “suddenly and unexpectedly struck Mr. Yarian with the side passenger mirror of his Chevy Suburban, knocking Mr. Yarian down. Immediately thereafter, Defendant fled the scene of the collision leaving Mr. Yarian injured and shocked” are sufficient for pleading purposes to establish malicious conduct on the part of Defendant to support a claim for punitive damages. 

    

   CONCLUSION AND ORDER

    

   Therefore, the Court overrules Defendant’s demurrer to fourth cause of action in Plaintiff’s Complaint and denies Defendant’s motion to strike Plaintiff’s claim and prayer for punitive damages. 

    

   Further, the Court orders Defendant to file and serve an Answer to the complaint on or before December 30, 2022. 

    

   Defendant shall provide notice of the Court’s ruling and file a proof of service of such.