Judge: William A. Crowfoot, Case: 21STCV28687, Date: 2022-10-27 Tentative Ruling

Case Number: 21STCV28687    Hearing Date: October 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On August 4, 2021, plaintiffs Brenda Lizbet Contreras Perez (“Perez”) and Evelyn Rodriguez (“Rodriguez”) (collectively, “Plaintiffs”) filed this action against defendants Jose Guillermo Quiroz (“Jose”) and Julissa V. Quiroz (“Julissa”) arising from a motor vehicle collision that occurred on or about January 15, 2020. 

          On August 30, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”) adding Emiliano Quiroz (“Emiliano”) as a defendant.  Plaintiffs assert causes of action for: (1) negligence, (2) negligence per se, and (3) intentional infliction of emotional distress (“IIED”).  On September 29, 2022, Jose, Julissa, and Emiliano (collectively, “Defendants”) filed this demurrer to the FAC and motion to strike.  Defendants contend that Plaintiffs fail to state a cause of action for negligence against Jose and Julissa.  They also contend that Plaintiffs fail to state a cause of action for negligence per se and IIED against all three Defendants.  Defendants further move to strike 21 different portions of the FAC.     

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

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, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.   Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

           Laurie S. Cox, counsel for Defendants, declares that on September 19, 2022, they contacted Plaintiff’s counsel telephonically to discuss each of the grounds presented in the anticipated demurrer and motion to strike.  (Demurrer, Cox Decl., ¶ 4.)  Plaintiff’s counsel did not answer the call and defense counsel left a voicemail message requesting a return call.  (Ibid.)  On September 22, 2022, defense counsel called Plaintiff’s counsel again, but Plaintiff’s counsel did not answer, so defense counsel left another voicemail.  (Id., ¶ 5.)  Defense counsel also sent an email discussing the grounds and authority for a demurrer and motion to strike.  (Id., ¶ 6.)  Plaintiff’s counsel, instead of responding to defense counsel’s efforts to meet and confer telephonically (or at all), chose to respond to defense counsel’s email and stated that he considered the meet and confer process completed and that Defendants should file their demurrer and motion.  (Id., ¶ 7.)  The Court finds that Defendants have fulfilled their responsibility to satisfy the meet and confer requirements of the Code of Civil Procedure. 

B.   Demurrer

a.    First Cause of Action for Negligence

Plaintiffs allege the action arises out of a motor vehicle accident that occurred on or about January 15, 2022, in Bell Gardens, California.  (FAC, ¶¶ 10-11.)  Plaintiffs allege that Emiliano was exiting a driveway when he failed to yield the right of way to all vehicles, entered the roadway, and caused Plaintiffs’ vehicle to collide with the passenger side of his vehicle.  (FAC, ¶¶ 10-12.)  Plaintiffs also allege that, after the collision, Emiliano attempted to flee the scene and, in the process of doing so, struck Plaintiffs’ vehicle again.  (FAC, ¶ 13.)  Then, Emiliano’s sister, Julissa, exited the vehicle operated by Emiliano, and took at least two photos on her cell phone.  (FAC, ¶ 13.)  Emiliano and Julissa then fled the scene, allegedly because Emiliano became aware that Plaintiffs were going to call the police.  (FAC, ¶ 13.) 

Defendants argue that Plaintiffs fail to state a cause of action for negligence against Jose and Julissa because neither individual was the alleged operator of the motor vehicle, and Plaintiffs’ allegation for negligent entrustment fails because there is no allegation that Jose and Julissa had actual or constructive knowledge of Emiliano’s alleged incompetence. 

In opposition, Plaintiffs argue that they have properly plead a claim for negligent entrustment because they allege that Jose and Julissa owned or controlled the vehicle driven by Emiliano, and that Emiliano was operating the vehicle with their express or implied authority and permission, and that they knew or should have known that Emiliano was unfit to operate the vehicle.  (FAC, ¶ 22.)  This is sufficient to state a cause of action for negligent entrustment.  Accordingly, Defendants’ demurrer to the First Cause of Action is OVERRULED.

b.   Second Cause of Action for Negligence Per Se

Defendants argue that Plaintiffs’ claim for negligence per se fails because it is not a separate or independent theory of liability or cause of action.  The Court agrees.  Negligence per se is an evidentiary doctrine whereby negligence may be presumed if the evidentiary requirements are met.  (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285 [“the doctrine of negligence per se does not establish tort liability.  Rather, it merely 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”].)  “Accordingly, to apply negligence per se is not to state an independent cause of action.  The doctrine does not provide a private right of action for violation of a statute.  [Citation.]  Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.”  (Ibid.)

The Court additionally notes that Plaintiffs did not address the second cause of action in their opposition. 

Accordingly, Defendants’ demurrer to the Second Cause of Action is SUSTAINED without leave to amend.  The allegations of statutory violations remain in the complaint insofar as they serve to prove Plaintiffs’ cause of action for negligence against Emiliano. 

c.    Third Cause of Action for IIED

The elements of intentional infliction of emotional distress are: (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress.  (So v. Shin (2013) 212 Cal.App.4th 652, 671.) 

Defendants argue that Plaintiffs fail to allege any extreme or outrageous conduct by Defendants.  Defendants also argue that Plaintiffs fail to plead the elements of intent, reckless disregard, and causation.  Defendants further argue that Plaintiffs do not allege any severe emotional distress. 

Plaintiffs allege that it was outrageous that Emiliano tried to flee the scene of the collision, and then after momentarily stopping to take photos, Emiliano and Julissa fled the scene of the incident without attempting to see if Plaintiffs were injured.  However, “[o]utrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community.”  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.)  Plaintiffs do not allege that Julissa or Jose committed any acts that were outrageous, and the mere allegation that Emiliano tried to flee the scene of the incident is insufficient to state a claim for IIED. 

Defendants’ demurrer to the Third Cause of Action is SUSTAINED without leave to amend.  

C.   Motion to Strike

Defendants move to strike various portions of the FAC, including

–              Paragraphs 13-16, 22,

–              Paragraph 13, lines 4-13;

-              The words, “and the Second Cause of Action, Third Cause of Action, and Prayer for Punitive Damages below, erroneously stated as part of Paragraph 16, but is actually part of Paragraph 17, 

-              Jose and Julissa’s names in Paragraph 18, lines 14-15, Paragraph 23, line 18, and Paragraphs 39-45,

-              Paragraph 22, lines 14-16,

-              The entire second and third cause of action,

-              The entire prayer for punitive damages, including paragraphs 48 through 52,

-              Paragraph 2 of the prayer for damages, line 13,

-              Any and all references to punitive and/or exemplary damages, and related allegations.

As an initial matter, a motion to strike is an improper vehicle to challenge an entire cause of action. But because the Court sustained Defendants’ demurrer to the second and third cause of action, the motion to strike the entire second and third cause of action is moot. 

The motion to strike is DENIED as to Paragraphs 13 and 22, which are factual allegations, as well as Jose and Julissa’s names in Paragraph 23, because Plaintiffs have successfully pled a negligent entrustment claim. 

The Court GRANTS the motion to strike Jose and Julissa’s name from Paragraph 18, because the rest of the FAC alleges that Emiliano was operating the vehicle, not Jose or Julissa. 

The Court next addresses Plaintiffs’ prayer for punitive damages, which make up the bulk of Defendants’ motion to strike.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.)  The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

“As amended to include [despicable], the [Civil Code section 3294] 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.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

Plaintiffs do not allege with sufficient specificity that any of the Defendants intended to cause them injury or that any of them engaged in despicable conduct with conscious disregard.  Also, there are no facts in the FAC specifically alleging that Defendants acted with the knowledge of probable dangerous consequences to Plaintiffs.  Accordingly, Plaintiffs’ prayer for punitive damages is insufficiently pleaded. 

IV.     CONCLUSION

Defendants’ demurrer to the First Cause of Action is OVERRULED.

Defendants’ demurrer to the Second and Third Cause of Action is SUSTAINED without leave to amend.

The motion to strike is DENIED as to:

 Paragraphs 13 and 22, and Jose and Julissa’s names in Paragraphs 18, 23. 

The motion to strike is GRANTED as to

-      Paragraphs 14-16, 48-52

-              The words, “and the Second Cause of Action, Third Cause of Action, and Prayer for Punitive Damages below”, erroneously stated as part of Paragraph 16, but is part of Paragraph 17, and

-              Paragraph 2 of the prayer for damages, line 13.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.