SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Nicole Pentis (“Plaintiff”) filed a Second Amended Complaint (“SAC”) against Defendants Nicolas Jacobi (“Jacobi”), The Turning Guide (“TTG”), and Howard Tyrone Ferguson (“Ferguson”) (collectively, “Defendants”) for damages arising from a motor vehicle accident. Plaintiff alleges Jacobi suffers from epilepsy and while driving, Jacobi blacked out and lost control of his vehicle. At the time, Plaintiff was a backseat passenger in Jacobi’s vehicle. Jacobi’s vehicle then struck a tour bus owned by Defendants TTG and Ferguson. 

The SAC alleges seven causes of action for (1) negligence by asserted against Jacobi, (2) negligence and negligence per se against TTG and Ferguson, (3) negligence – common carrier against TTG, (4) negligent entrustment against TTG, (5) negligent hiring, supervision and/or retention of employees against TTG, (6) negligent infliction of emotional distress (“NIED”) against all defendants, and (7) intentional infliction of emotional distress (“IIED”) against Jacobi.  The SAC includes a prayer for punitive damages. 

Defendant Jacobi now demurs to the SAC, arguing the sixth for NIED and seventh cause of action for IIED by Plaintiff fails to state sufficient facts to constitute a claim against him. 

Plaintiff opposes the motion, and Jacobi filed a reply.  

  

II. Demurrer 

A. Meet and Confer 

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.  (CCP § 430.41(a).)  Jacobi fulfilled this requirement prior to filing the demurrer.  (Dem. Moriarty Decl. ¶4.) 

 

B. Legal Standard 

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).  (CCP §§ 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, 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.”]). 

Here, Jacobi demurs to the sixth cause of action on the grounds that there is no independent cause of action for NIED.  The Court agrees that there is no independent tort for NIED.  A NIED claim by a direct victim is simply a negligence claim in which severe emotional distress is alleged; it does not constitute an independent tort. (See, e.g., Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) The SAC is clearly alleging NIED on a direct victim theory. The California Supreme Court has allowed plaintiffs to recover damages as “direct victims” in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076). Clearly, none of the three factual situation types apply here.  

The emotional distress allegations of “great mental pain and suffering, including emotional suffering, anguish, nervousness, grief, anxiety, worry, shock, and/or other emotional distress” (SAC ¶ 68) and so forth may be alleged in the first cause of action for negligence against Jacobi, but do not constitute a separate claim from the underlying facts of this incident.  

Therefore, Jacobi’s demurrer to the SAC is SUSTAINED as to sixth cause of action for NIED without leave to amend in terms of this cause of action.  However, Plaintiff is given leave to amend to assert allegations supporting emotional distress claims under the first cause of action for negligence.     

 

2. Seventh Cause of Action - IIED  

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, regarding the IIED claims, the SAC alleges: 

 

70. Defendant JACOBI’S conduct caused PLAINTIFF to suffer severe emotional distress. 

 

71. Defendant JACOBI’S conduct was outrageous because it goes beyond all possible bounds of decency. Defendant JACOBI’S conduct was outrageous because a reasonable person would regard the conduct as intolerable in a civilized community. 

 

72. Defendant JACOBI suffers from epileptic seizures and takes regularly prescribed medication to control and manage said seizures. 

 

73. Defendant JACOBI has lived with his medical condition since the age of thirteen (13). Plaintiff is informed and believes and thereupon alleges that Defendant JACOBI had previously caused another vehicle collision due to an epileptic seizure. On the night in question, Defendant JACOBI became aware that he could have an onset of a seizure. Therefore, Defendant JACOBI knew that should he suffer an epileptic seizure while operating a vehicle, it would likely result in mental distress to his passenger. 

 

74. Defendant JACOBI intended to cause PLAINTIFF emotional distress, or Defendant JACOBI acted with reckless disregard of the probably that PLAINTIFF would suffer emotional distress, knowing that he was on the verge of a possible seizure and PLAINTIFF was present when the conduct occurred. 

 

75. Defendant JACOBI knew that emotional distress would probably result from his conduct or Defendant JACOBI gave little or no thought to the probable effects of his conduct. 

(SAC at ¶¶ 70-75.)   

The SAC, thus, alleges that Jacobi had epilepsy since childhood, regularly took precautions to manage his condition, and intended to cause Plaintiff emotional distress because he knew he was on the verge of a possible seizure the night of the incident.  These allegations do not constitute outrageous conduct.  Moreover, there are no allegations showing Jacobi intended to cause emotional distress to Plaintiff beyond a conclusory allegation that he became aware he “could have” had an onset of a seizure. Furthermore, the SAC merely alleges in a conclusory manner that Plaintiff suffered severe emotional distress. This is insufficient to meet the high bar to allege 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.)  This is 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.)  The factual circumstances of this motor vehicle incident 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.”  (Hughes (2009) 46 Cal.4th at 1051.) 

Based on the foregoing, Jacobi’s demurrer to the seventh cause of action for IIED is SUSTAINED without leave to amend.   

 

III. Motion To Strike  

Jacobi moves to strike the prayer for punitive damages in the complaint arguing that the complaint fails to allege any intent to cause injury or any despicable conduct by Jacobi.    

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 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.  (CCP § 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.”  (CCP § 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.  (Civil 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 § 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 §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, the sixth cause of action for NIED and seventh cause of action for IIED have already been sustained without leave to amend. Consequently, the Court will evaluate whether the remaining allegations and cause of action against Jacobi are sufficient to support a request for punitive damages against Jacobi.  The remaining cause of action for negligence against Jacobi reiterates that Jacobi regularly suffered from epileptic seizures and was required to take medication daily for the purpose of managing his condition, and that prior to blackening out, Jacobi had an aura indicating an impending seizure, and Jacobi continued operating the motor vehicle instead of pulling over and stopping the car. (SAC ¶¶ 22-24.) The SAC’s allegations do not rise to the level of malice, fraud, or oppression, as defined by the Code.  In order to plead punitive damages, Plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity.  (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.)  This requires Plaintiff to allege sufficient facts to support conclusory allegations, which Plaintiff has not done.  (Brousseau, 73 Cal.App.3d at 872 [“the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ...”].) At most, the conduct alleged may rise to gross negligence, which describes conduct by a person who may have no intent to cause, harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754, fn. 4, internal citations omitted.). However, where a claim sounds in negligence, a plaintiff must demonstrate conduct that goes beyond gross negligence for punitive damages. Under California law, conduct which may be described as unreasonable or negligent generally does not satisfy the highly culpable state of mind warranting punitive damages. (In re Yahoo! Inc. Customer Data Sec. Breach Litig. (2018) 313 F. Supp. 3d 1113.) 

Accordingly, Jacobi’s motion to strike the request for punitive damages against him is GRANTED without leave to amend.    

 

IV. Conclusion 

The motion to strike punitive damages is granted without leave to amend.