SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On May 10, 2023, Plaintiff Jasmine Soto Cruz (“Plaintiff”) filed this action against Defendants Fernandez Perez Mulgado (“Mulgado”) and FM Perez Transport Inc. (“FM”), (collectively, “Defendants”) for damages arising from an automobile accident. The complaint alleges causes of action for (1) motor vehicle, (2) general negligence, (3) “Violation of Vehicle Code 20001(a) – Misdemeanor Hit and Run” against Mulgado only, and (4) Intentional Infliction of Emotional Distress against Mulgado only. The judicial form complaint includes a prayer for punitive damages.   

Defendants now demur to the third cause of action and moves to strike the prayer for punitive damages. 

Plaintiff opposes the motion, and Defendants filed a reply. 

 

II. Demurrer 

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includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.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.”]). 

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.) 

 

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).)   

The Court finds Defendants met their obligation in this regard. (Dem. Campo Decl. ¶ 3.) 

 

B. Analysis  

1. Third C/A - “Violation of Vehicle Code 20001(a) – Misdemeanor Hit and Run” 

Plaintiff sets forth a separate third cause of action against Mulgado, alleging as follows: 

 

There are no elements to Violation of Vehicle Code 20001(a) as a distinct and separate cause of action in this civil case. Rather, as Defendants aver, allegations that Mulgado fled the scene after the collision goes to the issue of duty and liability. The Court is not persuaded by Plaintiff’s citation to Zapata v. Foual, 2021 Cal. Super. LEXIS 4611, a trial court ruling which has no precedential value. As for Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, this case supports that failure to stop and render aid after negligently injuring another goes to the issue of duty, which may give rise to civil liability, if it is a proximate cause of further injury or death. In sum, Plaintiff is entitled to prove any act which constituted negligence in Mulgado’s operation and control of the vehicle, but the alleged violation of a vehicle code is not in itself a cause of action.  

Therefore, because of its relevance to the Plaintiff’s first and second causes of action for general negligence and motor vehicle negligence, the Court OVERRULES Defendants’ demurrer to the third cause of action. Instead, the Court exercises its discretion under CCP § 436 to strike only the heading “THIRD CAUSE OF ACTION (Violation of Vehicle Code 20001(a) - MISDEMEANOR HIT AND RUN) (Against Defendant FERNANDO PEREZ MULGADO)” on page 6 of Plaintiff’s complaint.  

 

III. Motion to Strike 

Defendant moves to strike the prayer for punitive damages in the complaint, arguing that the allegations do not rise to the level of malice, fraud, or oppression required to support a claim for punitive damages.   

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.)   

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96; see also Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.)  To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences."  (Taylor, 24 Cal.3d at 896.)  Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) 

In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 the court found that a hit and run cannot give rise to damages unless the fact of the hit and run caused additional damages above and beyond the accident itself.  Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run.  It did, however, hold that such 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.  For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood, death, etc.  If, however, the accident causes immediate soft tissue damage, no amount of aid would reduce or minimize the future damages, and the act of hitting and running would not give rise to additional damages.  If the act of hitting and running, in and of itself, does not give rise to a tort, then it logically follows that the act cannot give rise to a claim for punitive damages.  (Id.)    

 

Here, the complaint alleges in relevant part: 

 

“On or about May 19, 2021 Plaintiff was lawfully operating her vehicle southbound on I-710 near Whittier Blvd. Defendant FERNANDO PEREZ MULGADO operated his vehicle southbound on I-710 without caution and in such an unsafe manner that it violently collided into Plaintiff’s vehicle. Defendant FERNANDO PEREZ MULGADO immediately fled the scene after the collision.” 

(Compl. at p. 5.) 

 

The complaint’s allegations do not rise to the level of malice, fraud, or oppression, as defined by the CCP § 3294.  There are no factual allegations showing a conscious and deliberate disregard of the safety of others, or any allegations of fraudulent misrepresentations. 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,’ ...”].)     

The complaint conclusory merely alleges that Mulgado immediately fled the scene after the collision, and that this was conduct done “maliciously, willfully, oppressively.” The complaint does not allege that Plaintiff suffered any additional damages because of Mulgado’s conduct.  (Supra, Brooks, 40 Cal.2d at 679.)  In opposition, contends that there are sufficient facts because of the allegation that Mulgado willfully and intentionally fled the scene of the accident after causing the accident. However, violation of a Vehicle Code section alone is insufficient to support a prayer for punitive damages.  

The motion to strike the prayer for punitive damages is GRANTED. 

Further, because the Court struck only the heading of Plaintiff’s Third Cause of Action, as explained above, the Court will also strike paragraphs 2, 3, and 4 on page 6 of the Complaint alleging punitive damages. 

The burden is on Plaintiff to show in what manner she can amend the complaint to cure the above defects.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  Plaintiff argues if the pleadings are not specific enough, then Plaintiff can reword the complaint to comply with case law.    

 

Therefore, Plaintiff is granted twenty (20) days leave to amend.   

 

Moving parties are ordered to give notice.   

 

 

Dated this 13th day of December 2023