Judge: Serena R. Murillo, Case: 21STCV36561, Date: 2023-02-01 Tentative Ruling
Case Number: 21STCV36561 Hearing Date: February 1, 2023 Dept: 29
TENTATIVE
Defendant Barbara
Hodges’s demurrer to the cause of action for intentional infliction of
emotional distress in the first amended complaint is SUSTAINED with 30 days
leave to amend. Defendant’s
motion to strike punitive damages is GRANTED with 30 days leave to amend.
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 Rene´ J. Moya, III, which satisfies the meet and confer requirements. (Code Civ. Proc.
§§ 430.41, and 435.5.)
Discussion
IIED
Defendant demurs as to the cause of
action for intentional infliction of emotional distress (IIED), in the first
amended complaint (FAC), arguing Plaintiff failed to set forth sufficient facts to establish her
cause of action for IIED.
“The
elements of the tort of intentional infliction of emotional distress 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's suffering severe or extreme emotional distress; and (3) actual
and proximate causation of the emotional distress by the defendant's outrageous
conduct.” (Christensen v. Superior Court (1991) 54 Cal.3d
868, 903, internal quotations omitted.) For conduct to be
outrageous it must be “so extreme as to
exceed all bounds of that usually tolerated in a civilized community.” (See Ess v. Eskaton Properties, Inc. (2002) 97
Cal.App.4th 120, 130.) Liability does
not extend to mere insults, indignities, threats, annoyances, petty oppressions,
or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035,
1051.) “Severe emotional
distress means . . . emotional distress of such substantial quantity or
enduring quality that no reasonable man in a civilized society should be
expected to endure it.” (Fletcher v. Western Nat. Life Ins. Co.
(1970) 10 Cal.App.3d 376.)
“[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.)
Here, Plaintiff
alleges that on June 12, 2020, Defendant Jane Doe consumed alcoholic beverages
or a controlled substance to the point that she was unable to safely operate a
motor vehicle. Nevertheless, Defendant Doe took the keys to an ATV, got behind
the wheel, and drove within the Chevon Oil Refinery located at 324 W. El
Segundo Blvd., El Segundo, CA 90245. At the same time, Plaintiff was at work on
a rail car at the Chevron Oil Refinery. Defendant Doe was so intoxicated that
she failed to yield at an intersection, and crashed the ATV into the side of
the rail car carrying Plaintiff, causing Plaintiff to fall off the rail car and
suffer injuries. The FAC further alleges that Defendant Doe acted with a
complete disregard for the rights and safety of others, especially given that
the Chevron Oil Refinery was an inherently dangerous place of employment
containing highly combustible and volatile chemicals which can ignite and
explode. After crashing into the rail car, Defendant Doe fled the scene without
providing her contact or insurance information, and leaving Plaintiff to care
for himself in an inherently dangerous and highly combustible environment. Moreover,
the FAC alleges Defendant refused a toxicology test.
The Court agrees with Defendants
that the allegations do not rise to extreme and outrageous conduct. “[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.) At most, Plaintiff’s conduct as alleged can be said to
be criminal. Moreover, Plaintiff’s allegation that Defendant had a reckless
disregard of the probability of causing emotional distress is conclusory. Additionally,
Plaintiff has not pled any facts that she suffered severe emotional distress,
and merely alleges she suffered severe emotional distress, along with a list of
symptoms, without any factual basis. The
Court finds that Plaintiff failed to set forth sufficient facts that he
suffered severe emotional distress of such a quality that no reasonable person
in a civilized society should be expected to endure. Tracking the language of the IIED law is
insufficient. Plaintiff fails to allege any specific facts to show that he
in fact did suffer severe emotional distress.
As a result, Defendant’s demurrer
as to the cause of action for IIED is SUSTAINED with 30 days leave to amend.
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.)
Discussion
Defendant also moves to strike the
allegations regarding punitive damages, arguing Plaintiff failed to allege with
specificity any acts of oppression, fraud, or malice.
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.)
As discussed above, Plaintiff alleges
that on June 12, 2020, Defendant Jane Doe consumed alcoholic beverages or a
controlled substance to the point that she was unable to safely operate a motor
vehicle. Nevertheless, Defendant Doe took the keys to an ATV, got behind the
wheel, and drove within the Chevon Oil Refinery located at 324 W. El Segundo
Blvd., El Segundo, CA 90245. At the same time, Plaintiff was at work on a rail
car at the Chevron Oil Refinery. Defendant Doe was so intoxicated that she
failed to yield at an intersection, and crashed the ATV into the side of the
rail car carrying Plaintiff, causing Plaintiff to fall off the rail car and
suffer injuries. The FAC further alleges that Defendant Doe acted with a
complete disregard for the rights and safety of others, especially given that
the Chevron Oil Refinery was an inherently dangerous place of employment
containing highly combustible and volatile chemicals which can ignite and
explode. After crashing into the rail car, Defendant Doe fled the scene without
providing her contact or insurance information, and leaving Plaintiff to care
for himself in an inherently dangerous and highly combustible environment. Moreover,
the FAC alleges Defendant refused a toxicology test.
Defendant argues that Plaintiff has not
pled facts to support a finding that Defendant’s alleged driving under the
influence of a substance is “despicable conduct” sufficient to meet the high
standard imposed by Civil Code § 3294
In Taylor v. Superior Court (1979) 24 Cal.3d 890, 892, the court concluded that the act of operating a
motor vehicle while intoxicated may constitute an act of “malice” under section
3294 if performed under circumstances which disclose a conscious disregard of
the probable dangerous consequences. Taylor fell short, however, of
holding that punitive damages are always appropriate in cases involving driving
while intoxicated. The Court noted, “we have concluded 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.” (Id. at p. 892.)
Notably, Dawes v.
Superior Court (1980) 111
Cal.App.3d 82, 89, a
subsequent decision, held 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. The risk of injury to others
from [the defendant’s] conduct under the circumstances alleged was probable.” (Dawes
v. Sup. Ct. (1980) 111 Cal.App.3d 82, 89.)
Further, Taylor was
decided prior to 1987, at which time the Legislature added the requirement to
Civil Code Section 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. “[T]he statute's reference to
‘despicable’ conduct seems to represent a new substantive limitation on
punitive damage awards.¿Used in its ordinary sense, the adjective ‘despicable’
is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or
‘contemptible.’ (4 Oxford English Dict. (2d ed. 1989) p. 529.)¿As amended to
include this word,¿the statute plainly indicates that absent an intent to
injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’
disregard of the plaintiffs' interests. The additional component of ‘despicable
conduct’ must be found.” (Coll. Hosp., supra, 8 Cal. 4th
at 725 [emphasis added].) There has been no subsequent decision holding
that drinking and driving, without exacerbating circumstances that make injury
probable, gives rise to a claim for punitive damages.
The Court finds
that the allegations in the FAC regarding the intoxication
of Defendant are insufficient to support the imposition of punitive
damages. There are no potential aggravating circumstance alleged. As
discussed in Taylor and Dawes, specific factual
circumstances must be pled which show that the risk of injury was
probable, e.g., weaving through lanes of traffic at 65 miles per hour, a
previous conviction for driving under the influence of alcohol,
or driving while simultaneously drinking alcohol. The fact that
Defendant was under the influence, without more specific facts of aggravating
circumstances does not warrant punitive damages. The only potential
aggravating factor is that the Refinery was an inherently dangerous place of
employment containing highly combustible and volatile chemicals which can
ignite and explode. However, without more aggravating factors-- e.g., Plaintiff
was zigzagging through traffic going 65 miles per hour, in a crowded area--
this is insufficient. Especially in light of the allegation that she was
driving an ATV, and not a car. Moreover, as Defendant argues, the area of the
crash was a private place of employment; not a busy intersection on a Sunday
afternoon in summer like in Dawes, supra, 111 Cal.App.3d at 89.
Additionally, while Plaintiff argues punitive
damages are appropriate because Defendant fled the scene of the accident,
merely fleeing the scene of an accident does not warrant the imposition of
punitive damages because the act of fleeing is not the basis for the claims
alleged in the FAC. (See Brooks v. E.J. Willig Truck Transp. Co. (1953)
40 Cal.2d 669, 679 (fleeing the scene of an accident act is not a separately
actionable tort unless the act of fleeing causes additional injuries above and
beyond those caused by the accident.).) The FAC does not allege Plaintiff
suffered any additional injury by Defendant’s leaving the scene, especially in
light of the allegation that his co-workers were present and reported the crash
to supervisors and the fire department arrived on scene to treat Plaintiff.
(FAC, ¶
9.) Therefore, there is no basis to award punitive damages
based upon conduct as pled in the FAC.
Therefore, the
allegations in the FAC are insufficient to state a
prima facie claim for punitive damages for oppression and malice.
Accordingly,
Defendants’ Motion to strike is GRANTED with 30 days leave to amend.
Conclusion
Based
on the foregoing, Defendant’s demurrer to the cause of action for intentional
infliction of emotional distress in the first amended complaint is SUSTAINED
with 30 days leave to amend. Defendant’s
motion to strike punitive damages is GRANTED with 30 days leave to amend.
Moving party is
ordered to give notice.