Judge Michelle C. Kim, Case 20STCV24052 2023-04-14 Tentative Ruling

Plaintiff Shi Biao Hu (“Plaintiff”) filed this action against Defendant Jorge Ochoa (“Defendant”) for damages relating to a motor vehicle accident. On February 17, 2023, Plaintiff filed the operative SecondAmended Complaint (“SAC”) alleging causes of action for (1) negligence, (2) intentional infliction of emotional distress (“IIED”), (3) assault, and (4) battery. The SAC alleges that after Defendant negligently caused the accident, “Defendant was angry about the occurrence and without exiting his vehicle or exchanging information to identify himself for a bodily injury and/or property damage claim by the plaintiff, he drove away as plaintiff was hanging on his vehicle and then unreasonably failed to stop to avoid great bodily harm and injuries. In consequence, plaintiff was thrown off or fell off the defendant’s vehicle, hit the asphalt pavement and suffered harm and injuries, …” (SAC ¶ 6.) The SAC includes a prayer for punitive damages.

Defendant now demurs to the SAC arguing the second, third, and fourth causes of action fail to state sufficient facts to constitute a claim against him. In addition, Defendant moves to strike portions of the SAC and the prayer for punitive damages. Plaintiff opposes the demurrer and motion to strike, and Defendant filed a joint reply to the oppositions.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, supra, 116 Cal.App.4th at 994.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41(a).)

Defendant has fulfilled this requirement prior to filing the demurrer. (Citron Decl. re Demurrer ¶¶ 4-8.)

Defendant first argues that Plaintiff’s IIED claim is subject to demurrer because it has not been sufficiently alleged.

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].) And again, a defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].)

Here, Defendant contends that the SAC fails to allege extreme or outrageous conduct by Defendant, and that there is an absence of intent or reckless disregard alleged. (Demurrer at pp. 8-9.) Further, Defendant avers that SAC does not allege resulting severe emotional suffering as required to state a claim for IIED. (Demurrer at pp. 9-10.)

In arguing that the demurrer is meritless, Plaintiff asserts that this cause of action has been sufficiently pleaded and relies on the allegations in the SAC that describe Defendant placing his car in reverse gear in preparation of leaving the scene, intentionally accelerating his vehicle while Plaintiff was holding on to his vehicle, and driving away with the intention of causing Plaintiff to fall from his vehicle. (SAC ¶¶ 11-17.). Plaintiff also asserts that he “suffered and continues to suffer ongoing harm and damage as alleged hereinabove, from the severe physical and mental trauma, including post-traumatic stress from recurring intrusive thoughts about the events, bad memories, emotional distress, anger and outrage because of the manner [Defendant] harmed plaintiff.” (Id. at ¶ 16.)

In reply, Defendant reasserts that Plaintiff’s allegations fail to establish the requisite elements for IIED. (Reply at pp. 3-8.)

Upon review of the SAC, the Court finds that this cause of action has been sufficiently alleged. In terms of the alleged outrageous conduct, it has been alleged that Defendant attempted to flee the scene of the accident after Plaintiff took photographs of Defendant’s vehicle and demanded Defendant’s license, registration, and insurance information. (SAC ¶ 11.) Additionally, it is alleged that as Plaintiff attempted to prevent Defendant’s escape with his own body, Defendant intentionally accelerated and caused Plaintiff to be thrown off Defendant’s vehicle as Defendant drove away from the scene of the incident, resulting in physical and emotional injuries. (SAC ¶¶ 13-14.) For pleading purposes, these allegations sufficiently show that Defendant’s conduct was outrageous because it is alleged that he was acting intentionally to remove Plaintiff from his vehicle. (See Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 [fleeing the scene of an accident act constitutes a tort only if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run].) Furthermore, it is alleged that Defendant intended to cause severe distress in Plaintiff by intentionally causing Plaintiff to fall to the pavement in order to aid in his escape. (SAC ¶¶ 14-15.) Thus, the element of intent has been sufficiently alleged. With regard to the element of severe emotional distress, Plaintiff alleges he suffered “severe physical and mental trauma” in the form of “post-traumatic stress from recurring intrusive thoughts about the events, bad memories, emotional distress, anger and outrage” because of Defendant’s conduct. (Id. at ¶ 16.) Thus, Plaintiff has alleged severe emotional distress and established causation. (Hughes, supra, 46 Cal.4th at 1050-1051.) Despite Defendant’s assertions to the contrary, Plaintiff is not merely alleging shame, humiliation and embarrassment as the basis for his emotional distress. (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.)

Accordingly, Defendant’s demurrer to the SAC is overruled as to the second cause of action for IIED.

Next, Defendant argues that Plaintiff’s claims for assault and battery are subject to demurrer because they have not been sufficiently alleged.

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Kiseskey v. Carpenters’ Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 [“The tort of assault is complete when the anticipation of harm occurs.”].)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen, supra, 227 Cal.App.4th at 890; see also Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495 [contact is unlawful if unconsented to].)

In this case, Defendant contends that the SAC fails to allege that Defendant touched Plaintiff or caused Plaintiff to be touched with the intent by Defendant to harm or offend Plaintiff, or that Defendant acted in any manner as to cause Plaintiff to be in immediate apprehension of harmful or offensive contact. (Demurrer at pp. 11-13.) In fact, Defendant argues that Plaintiff’s allegations are conflicting because it is also alleged that Defendant reversed away from Plaintiff to leave the scene. (Demurrer at pg. 12.)

In opposition, Plaintiff contends that Defendant “used his vehicle as an instrument of deadly force to assault and batter” Plaintiff while in flight from the collision Defendant caused. (Opposition re: Demurrer at pg. 6.)

The cause of action for assault alleges, “By moving his vehicle in the direction of the plaintiff, through its use as an instrument to injure the plaintiff, and by such other force and violence, the defendant intended to place plaintiff in fear of an imminent battery on his person, and [Defendant] did so out of malice.” (SAC ¶ 19.) The battery claim similarly alleges the same. (Id. at ¶ 22.)

Previously, the Court found Plaintiff’s assault claim was insufficiently pleaded because the First Amended Complaint lacked allegations regarding Plaintiff’s reasonable belief that he was about to be touched in a harmful or offensive manner, and lacked allegations that Plaintiff did not consent to any purported acts by Defendant constituting assault. (Min. Order, Feb. 16, 2023 at pg. 6.) With regard to Plaintiff’s battery claim, the Court found that this claim was deficient because there lacked allegations that “Defendant touched or caused Plaintiff to be touched, that Plaintiff did not consent to the touching, or that a reasonable person in Plaintiff’s position would have been offended by any alleged touching.” (Id.) These identified deficiencies have been corrected in the most recent amended pleadings. (SAC ¶¶ 20, 23-25.)

Based on the foregoing, the demurrer is overruled as to the third cause of action for assault and the fourth cause of action for battery.

Defendant further moves to strike portions of the SAC relating to the second, third, and fourth causes of action and to strike the prayer for punitive damages in the FAC. (See Notice of Motion at pp. 2-3.)

As a preliminary matter, as to the second, third, and fourth causes of action, in light of the ruling overruling the demurrer to these causes of action, the motion to strike is denied because the claims are relevant and supported by factual allegations. Thus, the Court will address only the motion as it relates to the prayer for punitive damages. Also, with regard to the meet and confer requirement pursuant to Code of Civil Procedure § 435.5, it has been satisfied. (Citron Decl. re: Motion ¶¶ 4-8.)

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc. § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” “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. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code § 3294.)

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. Malice in fact may be proved under Civil Code § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). Thus it has been held that the “malice” required by Civil Code § 3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Here, Defendant asserts the SAC is devoid of any factual allegations sufficient to support the request for punitive damages. (Motion at pp. 8, 10, 12.) In opposition, Plaintiff contends that the SAC sufficiently pleads a claim for punitive damages based on the allegations that Defendant accelerated his vehicle to leave the scene of the accident and caused Plaintiff to drop off the vehicle. (Opposition re: Motion at pg. 3.)

The SAC alleges that after Defendant caused the accident, and because he was angry about the accident, Defendant “drove away as plaintiff was hanging on his vehicle and then unreasonably failed to stop to avoid great bodily harm and injuries. In consequence, plaintiff was thrown off or fell off the defendant’s vehicle, hit the asphalt pavement and suffered harm and injuries.” (SAC ¶ 6.) Furthermore, because the demurrer was sustained as to the allegations in the causes of action for IIED, assault, and battery, those allegations are presently available to support a claim for punitive damages. Upon review of these allegations, the Court finds that the allegations do rise to the level of malice, fraud, or oppression, as defined by the Code. For instance, there are factual allegations showing a conscious and deliberate disregard of the safety of others, or any allegations of fraudulent misrepresentations. In addition to alleging that Defendant intentionally drove away while Plaintiff was hanging onto Defendant’s vehicle, the SAC alleges that Defendant was aware Plaintiff was hanging onto his vehicle or that he intended to cause Plaintiff physical harm by driving away. (SAC ¶¶ 13-14, 19, 23.) Consequently, Plaintiff has plead allegations of fraud, malice, or oppression with sufficient particularity and does not rely on conclusory allegations. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392; Brousseau, supra, 73 Cal.App.3d at 872.)

Accordingly, Defendant’s motion to strike the request for punitive damages in the SAC is denied.

Defendant’s demurrer to the SAC is overruled in its entirety. Also, Defendant’s motion to strike is denied in its entirety.

Hon. Michelle C. Kim

Judge of the Superior Court