Judge: Sandy N. Leal, Case: 2022-01299450, Date: 2023-07-27 Tentative Ruling

1)   Motion to Strike Portions Of Complaint

2)   Demurrer to Amended Complaint

3)   Demurrer to Complaint

4)   Motion to Strike Portions Of Complaint

Defendant Danielle Schissel’s demurrer to the First Amended Complaint is OVERRULED.  The motion to strike is DENIED.

          Demurrer

          Under Civil Procedure Code section 430.10, “[t]he party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.” 

          First ground for demurrer

          Defendant’s notice of demurrer for the first ground is improper.  Code of Civil Procedure section 430.10 does not permit a demurrer to a caption to a complaint, to paragraphs within a complaint, a prayer, or punitive claims within a cause of action.  Defendant’s request for relief on demurrer as to the first ground is more properly directed towards a motion to strike.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:156 [motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer]; see Baral v. Schnitt (2016) 1 Cal.5th 376, 393 [motion to strike may be used to attack parts of complaint as plead].)  Moreover, Defendant moves to strike the punitive damages allegations in her motion to strike.

3rd cause of action for intentional infliction of emotional distress (IIED)

          Defendant demurs to the 3rd cause of action for IIED on the ground that it does not state sufficient fact to constitute a cause of action the allegations do not plead outrageous conduct or that Plaintiff suffered severe emotional distress.

          The elements of an IIED cause of action are:  “(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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. [Citation.]” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)  “A defendant's conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.]  And the defendant's conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]”  (Hughes v. Pair (2009 46 Cal.4th 1035, 1050-1051.)  As to the emotional distress suffered, “‘[s]evere emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. ’ ” ’ [Citation.]” (Id., at p. 1051.)

          Here, the 3rd cause of action alleges that Defendant knowingly and intentionally consumed alcohol, drove with a BAC of 0.2% at a high rate of speed, Plaintiff saw her coming towards him but could not get out of way in time, and she collided into him without slowing or altering her path, pushing his car into another and into the intersection.  Those allegations are sufficient to allege outrageous conduct by Defendant that exceed all bounds of that usually tolerated in a civilized community, engaged in with the realization that injury will result. 

          The 3rd cause of action also alleges that Plaintiff has suffered severe and continuing emotional distress in that he is afraid to drive and experiences nervousness, sweating and panic.  In addition to the allegations that Plaintiff saw Defendant coming and could not avoid the collision, the allegations are sufficient to allege severe emotional distress that is of substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure.  Accordingly, the demurrer to the 3rd cause of action for IIED is OVERRULED.

          Motion to strike

          “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.”  (Code Civ. Proc., § 436.)

Motion to strike “Intentional” in caption, paragraph 10c, and the entirety of the 3rd cause of action for IIED

          Defendant moves to strike the word “Intentional” in the caption, paragraph 10c, and the entirety of the 3rd cause of action for IIED.  The word “Intentional” in the caption is referring to the IIED cause of action, because there is no other intentional tort alleged in the FAC.  As to paragraph 10c, Intentional Tort, it can also only be referring to the IIED cause of action.  Because the demurrer to the IIED cause of action is overruled, the motion to strike these items in the FAC is DENIED because those items are properly pled.

Motion to strike “Punitive Damages” in caption, paragraph 11g, paragraph 14a(2)

          Civil Code § 3294, subdivision (a) permits the recovery of punitive damages upon a clear and convincing showing that a defendant is guilty of oppression, fraud or malice.  “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.  (Civ. Code, § 3294, subd. (c)(1).)  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (Id., § 3294, subd. (c)(2).) “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.  (Id., § 3294 subd (c)(3).)  “The term ‘despicable,’ though not defined in the statute, is applicable to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299, internal quotation marks omitted.)

          “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.”  (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.)  However, if the allegations demonstrate malice, unintentional torts may support punitive damages under Civil Code section 3294.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 (Taylor).

          Taylor was a drunk driving case.  At the time Taylor was decided, Civil Code section 3294 did not include a definition of malice and malice was construed to mean malice in fact, which could be established by conduct that was done with a conscious disregard of the right and safety of others.  (Taylor, supra, 24 Cal.3d at 894; Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211 (Lackner).)  “In 1980, the Legislature amended section 3294 by adding the definition of malice stated in Taylor [Citations.] That definition was amended in 1987. As amended, malice, based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's conduct is ‘despicable’ and ‘willful.’ [Citation.] The statute's reference to ‘despicable conduct’ represents ‘a new substantive limitation on punitive damage awards.’ [Citation]” (Lackner, supra, 135 Cal.App.4th at 1211.); see College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) 

          For punitive damages under the current definition of malice, “conscious disregard for the safety of another may be found where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. [Citation.] Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as having the character of outrage frequently associated with crime. [Citations.]”  (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332-333.)

          A complaint must plead facts to support a claim for punitive damages, conclusory allegations are insufficient.  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)  “In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.)

          Here, the FAC alleges that Defendant knowingly and intentionally consumed alcohol, she had a BAC of 0.2% and drove at a high rate of speed, Plaintiff saw her coming towards him but could not get out of way in time, and she collided into him without slowing or altering her path, pushing his car into another and into the intersection.  The allegations are sufficient to show Defendant engaged in despicable conduct carried on with a willful and conscious disregard of the rights or safety of others.  Accordingly, the motion to strike “Punitive Damages” in caption, paragraph 11g, paragraph 14a(2) is DENIED.

Motion to strike allegations in 2nd cause of action and Exhibit A

          Defendant moves to strike Exhibit A in the complaint as well allegations in the 2nd cause of action for general negligence.  However, Defendant failed to provide any argument as to why Exhibit A and that those allegations in the 2nd cause of action should be stricken.  Therefore, the motion to strike those portions of the FAC is DENIED.

          Defendant to file and serve an answer to the FAC within 5 days of notice of ruling.

          Plaintiff shall give notice of ruling.