Judge: Steven A. Ellis, Case: 22STCV24175, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV24175    Hearing Date: December 5, 2023    Dept: 29

Tentative

The Court SUSTAINS the Demurrer to the Second Cause of Action WITH LEAVE TO AMEND.

The Court OVERRULES the Demurrer to the Fifth and Sixth Causes of Action.

The Court DENIES the Motions to Strike.

Background

This matter arises from an auto accident that allegedly occurred on July 29, 2020, near the intersection of Nordhoff Street and Orion Avenue in the City of Los Angeles.  Plaintiffs Jose Montoya Rodriguez and George F. Lukamu (“Plaintiffs”) filed a complaint on July 27, 2022 and a First Amended Complaint (“FAC”) on September 29, 2023. 

In the FAC, Plaintiffs allege (among other things) that Defendant Margaritha Avila (“Avila”) caused the accident while driving under the influence, and that Defendant Paul Llorens (“Llorens”) owned the vehicle that Avila was driving and negligently entrusted the vehicle to her (See FAC, ¶¶ 1, 19, 31, 38.)  Plaintiffs also allege the Defendant Progressive West Insurance Company (“Progressive”) made false statements and/or failed to disclose material information in connection with an agreement to settle certain claims arising out of the accident.  (See id., ¶¶ 42-108.)

Plaintiffs assert the following claims in their FAC: (1) general negligence, against Avila, Llorens, and Does 1 through 15 and 17-30; (2) negligence per se for speeding, Vehicle Code section 22350, against all defendants; (3) negligence per se for driving under the influence, vehicle Code section 21352, subdivision (a), against Avila and Does 1 through 15 and 17-30; (4) negligence per se for driving under the influence and causing physical harm, Vehicle Code section 21353, against Avila and Does 1 through 15 and 17-30; (5) rescission, against all defendants; and (6) declaratory relief, against all defendants.

On October 25, 2023, Avila filed a motion to strike the prayer for punitive damages and certain supporting allegations.  The hearing was scheduled for November 30.

On October 31, 2023, Llorens filed a demurrer to the second, fifth, and sixth causes of action in the FAC and a motion to strike the prayer for punitive damages.  The hearing was scheduled for December 5.

Plaintiffs filed oppositions on November 14 and 21.  Avila filed a reply on November 21 and Llorens filed replies on November 28.

On November 30, the Court, on its own motion, continued the hearing on Avila’s motion to strike to December 5.

Legal Standard

A demurrer tests the legal sufficiency of a complaint (or other pleading) and raises only issues of law. (Code Civ. Proc., § 430.10, subd. (e); see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The Court may consider only the allegations of the pleading (including exhibits) and judicially noticeable matters.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)  The Court must accept as true all properly pleaded facts appearing in the complaint.  (Donabedian, supra, 116 Cal.App.4th at p. 994; Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.)

A motion to strike challenges “any irrelevant, false, or improper matter inserted in any pleading” or “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.)  In ruling on a motion to strike, the court must assume the truth of the properly pleaded facts in the complaint or other pleading.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Before filing a demurrer and/or a motion to strike, the demurring or moving party must meet and confer with the opposing party.  (Code Civ. Proc., §§ 430.41(a), 435.5(a).)

Meet and Confer

Defendants satisfied the statutory meet and confer requirements.  (Grant Decl., ¶ 6; Kahen Decl., ¶ 6.)

Discussion

Demurrer of Llorens to Second Cause of Action for Negligence Per Se

“The essential elements of a cause of action for negligence are: (1) the defendant's legal duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3)¿injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) Owing a duty of care to the plaintiff is an indispensable prerequisite to the imposition of liability for negligence. (Richards v. Stanley (1954) 43 Cal.2d 60, 63.) A duty is an “obligation, recognized by the law, requiring the actor to conform to certain standard of conduct, for the protection of others against unreasonable risks.” (Hilyar v. Union Ice Co. (1955) 45 Cal. 2d 30, 36-37.)

“[T]he doctrine of negligence per se is not a separate cause of action.” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534; accord Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210; Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn.2; Quiroz v. Seventh Ave. Center (2006) 140¿Cal.App.4th 1256, 1285.) Rather, the doctrine “creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Turner, supra, 27 Cal.App.5th at p. 534.) It “codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. (Quiroz, supra, 140¿Cal.App.4th at p. 1285.) 

Plaintiffs have already asserted a claim against Llorens for negligence.  As negligence per se is not a separate cause of action, the Demurrer to the Second Cause of Action in the FAC is SUSTAINED.

Plaintiffs request leave to amend.  Although the defect in the Second Cause of Action is a legal one, the Court recognizes that this is the first challenge to Plaintiffs’ pleading and that perhaps there is some additional factual allegation, beyond what is contained in the First Cause of Action for negligence, that Plaintiffs may wish to assert.  Accordingly, the Court will grant Plaintiffs leave to amend.

Demurrer of Llorens to Fifth Cause of Action for Rescission

Defendant Llorens challenges the cause of action for rescission on two grounds.

First, Defendant argues that rescission is a remedy, not a cause of action.  That is true, but it is not enough to sustain the demurrer.  In ruling on a demurrer, the Court must determine whether the allegations state facts sufficient to constitute a cause of action; if they do, the Court will disregard any error in labeling the cause of action in the pleading.

Second, Defendant argues that the substance of Plaintiffs’ cause of action is for fraud, which Plaintiffs have not alleged with sufficient particularity.  The Court has reviewed the FAC in detail and concludes, however, that Plaintiffs have alleged a fraud cause of action (for which rescission may be a remedy) with detailed, specific, factual allegations, including those set forth in paragraphs 42 through 108 of the FAC. 

Accordingly, the demurrer to the Fifth Cause of Action is OVERRULED.

Demurrer of Llorens to Sixth Cause of Action for Declaratory Relief

Plaintiffs seek a declaration regarding the validity of their rescission of a settlement agreement that released the claims of Plaintiffs against (among others) Llorens.  This is a proper subject of declaratory relief, even if (as Llorens argues) the insurance policy issued by Progressive does not include either Plaintiff or Llorens as a named insured.

Accordingly, the demurrer to the Sixth Cause of Action is OVERRULED.

Motions of Avila and Llorens to Strike

Llorens moves to strike the prayer for punitive damages in the FAC.  Avila also moves to strike the prayer for punitive damages, along with various other allegations in the FAC relating to punitive damages.

“‘In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.” (Today IV’s Inc. v. Los Angeles County MTA (2022) 83 Cal.App.5th 1137, 1193.) Civil Code section 3294 provides that on non-contract causes of action, plaintiffs may recover punitive damages when they prove “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice” (Civ. Code, § 3294, subd. (a).) 

“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).)  “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).)  The term “despicable,” which is used in the definition of “oppression” and “malice” refers to 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.) In general, punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.)

To show that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to establish negligence, gross negligence or even recklessness. (Dawes v. Super. Ct. (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 knowingly disregarded the substantial certainty of injury to others.” (Id. at p. 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 Hosp., Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 725.)

In a complaint, the plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Id. at p. 721.) The basis for punitive damages must be pleaded with particularity; conclusory allegations devoid of any factual assertions are insufficient. (Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1042.; see also Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

The Court has reviewed the FAC and the arguments of each side and concludes that the FAC, and particularly (but not limited to) paragraph 2, alleges facts with sufficient particularity that, if proven, these facts would support a claim for the recovery of punitive damages.  

Accordingly, the Motions to Strike are DENIED.

Conclusion

The Court SUSTAINS the Demurrer to the Second Cause of Action WITH LEAVE TO AMEND.

The Court OVERRULES the Demurrer to the Fifth and Sixth Causes of Action.

The Court DENIES the Motions to Strike.

The Court GRANTS Plaintiffs leave to file an amended complaint within 14 days of notice of this ruling.

Defendants are ORDERED to respond to Plaintiff’s operative pleading by the later of (1) 28 days from notice of this order or (2) 21 days from service of any amended complaint.

Moving parties are ordered to give notice.