Judge Thomas Falls, Case 22PSCV02964 2023-05-02 Tentative Ruling

(1) DEFENDANT JARED ANDREW PAREDES’S DEMURRER TO THE THIRD, FOURTH AND FIFTH CAUSES OF ACTION OF PLAINTIFFS’ COMPLAINT’

(2) DEFENDANT JARED ANDREW PAREDES’S MOTION TO STRIKE PUNITIVE AND EXEMPLARY ALLEGATIONS AND DAMAGES FROM PLAINTIFFFS’ COMPLAINT

(1) DEFENDANT JARED ANDREW PAREDES’S DEMURRER TO THE THIRD, FOURTH AND FIFTH CAUSES OF ACTION OF PLAINTIFFS’ COMPLAINT is SUSTAINED without leave to amend. The court does not grant leave to amend because NIED is not a proper cause of action when negligence is alleged.

(2) DEFENDANT JARED ANDREW PAREDES’S MOTION TO STRIKE PUNITIVE AND EXEMPLARY ALLEGATIONS AND DAMAGES FROM PLAINTIFFFS’ COMPLAINT is GRANTED with leave to amend.

This case arises from a motor vehicle accident. Plaintiff JOHN HENRY LEE and DANIEL LEE (“Plaintiff Daniel”) (collectively, “Plaintiffs”) allege the following against Defendants JARED ANDREW PAREDES (“Defendant Jared”), ANDREW PEREDES (“Defendant Andrew”),[1] the CITY OF AZUSA, and CITY OF COVINA: Decedent Milagros Isabel Lee (“decedent”) was operating her vehicle with her son, Plaintiff Daniel, as a front passenger. Defendant Jared was under the influence while driving, struck decedent’s vehicle, which caused decedent’s death.

1. Negligence and Dangerous Condition of Public Property (as to city Defendants)

4. Intentional Infliction of Emotional Distress (“IIED”) (as to Defendants Jared and Andrew)

5. Negligent Infliction of Emotional Distress (“NIED”) (as to Defendants Jared and Andrew)

On March 17, 2023, the City of Azusa filed its Answer and a cross-complaint against Defendants Jared and Andrew.

On April 19, 2023, Plaintiffs filed an opposition to Defendant Jared’s demurrer with a motion to strike.[2]

A demurrer may be asserted 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 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 (“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 CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

Defendant Jared demurs to the 3^rd cause of action for Battery, 4^th cause of action for IIED, and 5^th cause of action for NIED on the grounds that all fail to state sufficient facts to constitute a cause of action (Code of Civ. Proc. Section 430.10(e) and are uncertain, ambiguous, and unintelligible. (Code of Civ. Proc. Section 430.10(f).)

The court will only address the 5^th cause of action for NIED cause of action because in opposition, Plaintiffs state that they “agree to remove the Third Cause of Action for Battery and the Fourth Cause of Action for Intentional Infliction of Emotional Distress.” (Opp. p. 1:23-24.)

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.) Thus, to plead NIED, negligence must be established. There are two classifications for NIED claims: (1) bystander and (2) direct victim. (See Spates, supra, 114 Cal.App.4th at 213.) A plaintiff may make a bystander NIED claim if he or she is present at the scene of the injury-producing event at the time it occurs, witnesses the physical injury of someone closely related to him or her, and suffers emotional distress beyond that which would be anticipated in a disinterested witness. (See id.; Thing v. La Chusa (1989) 48 Cal.3d 644, 666.) To make a direct victim claim, the emotional distress suffered by the plaintiff must be a foreseeable consequence of the conduct directed at the plaintiff. (See Molien v. Kaiser Foundation Hospital (1980) 27 Cal.3d 916, 930.)

Defendant Jared demurs on the ground that NIED is not a separate cause of action but rather a bases for damages awarded for a negligence cause of action, which Plaintiffs have already alleged. (Demurrer pp. 6-7.)

In Opposition, Plaintiffs do not address the well-established rule Defendant cites that NIED is duplicative of the negligence cause of action such that it is improperly asserted. Rather, Plaintiffs merely cite to the rules for NIED and allegations.

Therefore, as the duplicative claim is improper, the court sustains the demurrer WITHOUT leave to amend as to the NIED cause of action.

Based on the foregoing, the demurrer is sustained WITHOUT leave to amend. Though Plaintiffs seek leave to amend on the NIED claim, leave to amend would be futile because as a matter of law (not fact), a separate “cause of action” for NIED cannot be pled. Instead, if Plaintiffs prevail on their negligence cause of action, they may be entitled to damages for the emotional consequences of the physical harm.

Defendant Jared seeks to strike punitive or exemplary damages from Plaintiffs’ complaint because Plaintiffs do not allege how the conduct of intoxicated driving demonstrates malice. The court turns to Taylor v. Superior Court (1979) 24 Cal.3d 890 as it is the seminal case in discussing the issue.

Civil Code § 3294(a) states, “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

“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. Civil Code §3294.) Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). Thus, it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences." (Taylor, 24 Cal.3d at 896.)

Here, the SAC alleges in pertinent part that “[a] police investigation after the accident showed that Defendant, Jared Andrew Paredes was under the influence of alcohol at the time of the accident. (Complaint ¶6.)

The California Supreme Court in Taylor, supra, stated that “it is crystal clear . . . that . . . [d]runken drivers are extremely dangerous people.” (Id. at p. 899.) And to the extent that Defendant Jared may argue more specifics are required to be pleaded such as alcohol content level or previous abuses of drinking and driving, that argument was rejected by Taylor:

Plaintiff seeks to distinguish Gombos by stressing the additional allegations in the present complaint which include defendant's history of alcoholism, his prior arrests and convictions for drunk driving, his prior accident attributable to his intoxication, and his acceptance of employment involving the transportation of alcoholic beverages. Certainly, the foregoing allegations may reasonably be said to confirm defendant's awareness of is inability to operate a motor vehicle safely while intoxicated. Yet the essence of the Gombos and present complaints remains the same: Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby. This is the essential gravamen of the complaint, and while a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases.

Lastly, to the extent that Defendants rely on the subsequent case of Dawes v. Superior Court (1980) 111 Cal.App.3d 82 for its proposition that “intoxicated driving does not always give rise to a claim for punitive damages” (Motion pp. 6-7, Reply p. 3), that argument takes Dawes’ analysis out of context.[3] Dawes does not stand for the proposition that intoxicated driving is not sufficient for punitive damages. In fact, in responding the defendant’s argument that intoxicated driving is alone not sufficient for punitive damages, the appellate court stated that “Defendants' analysis is faulty.” (Id. at p. 89.) Furthermore, the point should be emphasized that Dawes did not replace the finding in Taylor, which was that even a conclusory allegation of intoxicated driving may suffice for a showing of malice.

Notwithstanding the foregoing, the court notes that Plaintiffs’ opposition (not complaint) asserts a fact that would support a showing of malice: Defendant’s blood alcohol concentration was .16%, which is double the maximum limit. Accordingly, as noted by Dawes, while the risk of injury associated with intoxicated driving is “certainly foreseeable, but it is not necessarily probable” (id. at 89), the court finds the addition of this fact in the complaint would suffice for malice.

Based on the foregoing, the demurrer is sustained without leave to amend and the motion to strike is granted with leave to amend.

[1] According to the complaint, Defendant Andrew was the owner of the vehicle and father of Defendant Jared. “He negligently entrusted the vehicle to his son knowing that his son was a danger to others on the roadway and that he tended to drive intoxicated.” (Complaint ¶32.)

[2] The court notes that Plaintiffs’ opposition to both the demurrer and motion to strike are limited its in analysis but rather conclusory by citations to law and allegations in the complaint.

[3] It should be noted that Taylor was decided shortly after the allegations set forth in the Dawes, meaning that the issue of whether Taylor should have been retroactive effect was not reached. Moreover, the Taylor court superseded Gombos v. Ashe, which was a case that held intoxicated driving is not enough for punitive damages, and it is the Gombos case which the defendant(s) in Dawes heavily relied upon.