Judge Serena R. Murillo, Case 20STCV35380 2023-01-13 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV35380, Date: 2023-01-13 Tentative Ruling

Case Number: 20STCV35380 Hearing Date: January 13, 2023 Dept: 29

TENTATIVE

Defendant Dora Guadalupe Almanza De Pacheco’s demurrer to the third cause of action for intentional infliction of emotional distress is SUSTAINED with 30 days leave to amend the complaint. The demurrer to the fourth cause of action for negligent infliction of emotional distress is MOOT. Defendant’s motion to strike punitive damages is MOOT.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Patrick A. Maher, which satisfies the meet and confer requirements. (CCP sections 430.41(a) and 435.5(a).)

Discussion

A. Third Cause of Action for Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and 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. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Id.) While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Id. at 494.)

Plaintiff alleges that Defendant Pacheco’s intentional, and willful acts of driving her SUV at a high rate of speed and in violation of multiple sections of the California Vehicle Code despite the existence of passengers in her SUV and other vehicles on the road, were extreme and outrageous and were taken with a reckless disregard of the probability of causing damage, including both physical and emotional distress, to others, including her passengers and other drivers such as Timm. (Complaint ¶ 64.)

Plaintiff’s allegations are insufficient to state a cause of action for intentional infliction of emotional distress. Plaintiff has failed to plead any extreme and outrageous behavior, or reckless disregard of the probability of causing emotional distress. The Complaint makes a conclusory allegation that Defendant’s actions were both outrageous and intentional, but does not allege any facts that rise to the level of outrageousness. Driving a vehicle while using a cell phone is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” At most, the complaint pleads general negligence. Moreover, no facts have been pled to show there has been severe emotional suffering; instead the complaint alleges in a conclusory fashion that Plaintiff has suffered fright, horror, extreme and severe anguish, humiliation, anger, tension, nervousness, worry, anxiety, depression, lowered self-esteem, sleeplessness, hopelessness, and other emotional distress. Thus, the complaint fails to state a cause of action for intentional infliction of emotional distress.

As such the demurrer to the third cause of action for IIED is SUSTAINED with 30 days leave to amend.

B. Fourth Cause of Action for Negligent Infliction of Emotional Distress

Defendant argues the fourth cause of action for NIED fails because it is not an independent tort and is otherwise subsumed in the ninth cause of action for negligence.

California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Here, Plaintiff has already alleged a cause of action for negligence based on the same facts as Plaintiff’s claim for NIED. To this extent, the negligence and NIED causes of action are duplicative and the demurrer to the NIED cause of action may be sustained on such grounds. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (stating that a demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery”; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

In any event, Plaintiff states he has agreed to remove this cause of action.

Accordingly, the demurrer to the fourth cause of action is moot.

Motion to Strike Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Motion to Strike Discussion

Defendant moves to strike allegations of punitive damages against her in the complaint.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

Plaintiff states that he agrees to withdraw his request for punitive damages in light of the Court’s prior ruling regarding Defendant Uber’s motion to strike punitive damages.

As such, the motion to strike punitive damages is MOOT.

Conclusion

Accordingly, Defendant’s demurrer to the third cause of action for intentional infliction of emotional distress is SUSTAINED with 30 days leave to amend the complaint. The demurrer to the fourth cause of action for negligent infliction of emotional distress is MOOT. Defendant’s motion to strike punitive damages is MOOT.

Moving party is ordered to give notice.