Judge: Peter A. Hernandez, Case: 23PSCV01722, Date: 2023-11-02 Tentative Ruling

Case Number: 23PSCV01722    Hearing Date: November 2, 2023    Dept: K

1.         Defendant Karen Lynn Borromeo Dijamco’s Demurrer to Plaintiffs’ [First] Amended Complaint is OVERRULED in part (i.e., as to the second cause of action) and SUSTAINED in part (i.e., as to the fourth cause of action). The court will hear from counsel for Plaintiffs as to whether leave to amend is requested and will require an offer of proof if so.

2.         Defendant Karen Lynn Borromeo Dijamco’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED as MOOT in part (i.e., as to Paragraphs 42 and 43) and GRANTED in part (i.e., as to Paragraph 3 of the prayer). The court will hear from counsel for Plaintiffs as to whether leave to amend is requested and will require an offer of proof if so.

Background[1]  

Plaintiffs Guillermina Murcio and Jorge Armendariz (together, “Plaintiffs”) sustained injuries in a February 12, 2023 head on motor vehicle collision. Plaintiffs allege that the driver of the other vehicle, Karen Lynn Borromeo Dijamco (“Dijamco”), was intoxicated.

On August 22, 2023, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Dijamco, Victor Borromeo and Does 1-20 for:

1.                  Negligence

2.                  Negligent Infliction of Emotional Distress

3.                  Negligent Entrustment

4.                  Battery

A Case Management Conference is set for November 2, 2023.

1.         Demurrer to FAC

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Dijamco demurs, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the second and fourth causes of action in Plaintiffs’ FAC, on the basis that they both fail to state facts sufficient to constitute causes of action and are uncertain.

Second Cause of Action (i.e., Negligent Infliction of Emotional Distress)

Dijamco essentially demurs to the second cause of action on the basis that it is duplicative of the negligence cause of action. (Demurrer, 7:1-3 [“Here, Plaintiffs have a cause of action for negligence and if they prevail, they may recover damages for any emotional distress that they can prove arose out of the subject accident. It is entirely improper o [sic] maintain a separate cause of action for NIED under these circumstances.”].) Dijamco has failed to support her position with legal authority. Code of Civil Procedure § 430.10 does not authorize sustaining a demurrer on the basis of redundancy. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890).

Dijamco’s demurrer to the second cause of action is overruled.

Fourth Cause of Action (i.e., Battery)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. (So v. Shin (2013) 212 Cal.App.4th 652, 668-669; see also, CACI No. 1300.) “In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)

Plaintiffs have alleged, in relevant part, that “[d]espite [consuming significant amounts of alcohol] and being aware that she was incapable of operating a vehicle, [Dijamco] intentionally drove her vehicle while inebriated, and then intentionally entered the opposite lane of travel on the subject highway, with the intent to make contact with Plaintiffs and harm or offend them.” (FAC, ¶ 38).

Plaintiffs’ allegations of intent and/or “willful disregard” of their rights, however, are conclusory and not factually supported.

Dijamco’s demurrer to the fourth cause of action is sustained.

2.         Motion to Strike Portions of FAC

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Discussion

Dijamco moves to strike out Paragraphs 42 and 43, as well as Paragraph 3 of the prayer in Plaintiffs’ FAC.

The motion is denied as moot in part (i.e., as to Paragraphs 42 and 43), based upon the ruling made on the demurrer.

Punitive damages may be awarded in an action for the breach of an obligation not arising from contract upon clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)

“Malice” is defined as “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.” (Civ. Code § 3294, subd. (c)(1).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294, subd. (c)(2).) “Fraud” is defined as “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)(3).)

A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice. . .’” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “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.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

As to Paragraph 3 of the prayer, the California Supreme Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 892 determined that “the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under § 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, the Fourth District Court of Appeal noted that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable." Notably, both Taylor and Dawes were decided prior to 1987, when the Legislature added the requirement to Civil Code § 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard.

Plaintiffs have alleged, without more, that Dijamco had, prior to driving her vehicle, “consumed numerous alcoholic beverages” and was “driving under the influence.” (FAC, ¶ 14)[2]. Plaintiffs, however, have failed to allege any aggravating circumstances in the instant case; as such, the motion is granted as to Paragraph 3 of the prayer.