Judge: William A. Crowfoot, Case: 22STCV19140, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV19140    Hearing Date: December 15, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On June 10, 2022, plaintiffs Sung Su Kim (“Kim”) and Susan Oh-Kim (collectively, “Plaintiffs”) filed this action against defendants Arman Ali Tirmizi aka Arman Ali Tirmizzi (“Tirmizi”) and Fatima Nizami (collectively, “Defendants”).  Plaintiffs allege that on November 16, 2020, Kim was riding a motorcycle when he was hit by a motor vehicle operated by Tirmizi.  Plaintiffs allege a cause of action for intentional infliction of emotional distress (“IIED”) on the grounds that Tirmizi fled from the scene of the accident.  Defendants demur to the IIED claim and move to strike portions of the IIED claim, specifically: (1) Page 15, lines 1-2, (2) Paragraph 41, and (3) Plaintiff's prayer for punitive damages arising from the Third Cause of Action for IIED.    

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

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).)  

          David Tetzlaff, counsel for Defendants, declares that on November 7, 2022, he called Plaintiff’s counsel, left a voice message, and sent an email but received no response from Plaintiff’s counsel to these attempts to meet and confer.  The meet and confer requirement is satisfied.

          IIED

To recover for intentional infliction of emotional distress the plaintiffs must allege "outrageou conduct, which is conduct so extreme that it goes beyond all possible bounds of decency.  (Davidson v. City of Westminster (1982) 32 Cal.3d 197,209.)  “Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community.  The defendant’s conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability.”  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.)

Defendants argue that Plaintiffs fail to state a cause of action for IIED against Tirmizi because the underlying conduct is limited to: (1) causing the car accident and (2) fleeing the scene of the accident.  The Court agrees.  The fact that Tirmizi t fled the scene of the collision does not show that he acted with conduct that is so extreme as to exceed all bounds of what is usually tolerated in a civilized community.  Plaintiffs fail to plead with specificity that Tirmizi’s actions following the collision caused Plaintiff to suffer additional or greater damage than those already caused by the collision.  (See Karl v. C.A. Reed Lumber (1969) 275 Cal.App.2d 358.) 

Accordingly, the demurrer to Plaintiffs’ Third Cause of Action for IIED is SUSTAINED. 

Motion to Strike

Because Defendants’ demurrer is sustained, their motion to strike, which exclusively sought to strike portions of the Third Cause of Action and its corresponding prayer for punitive damages, is moot. 

However, in an attempt to preserve their claim for punitive damages, Plaintiffs argue that their Second Cause of Action for general negligence states a claim for punitive damages and requests the Court allow them leave to amend. 

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).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘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.) “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.)  “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.)

Even if proven as true, the allegation that Tirmizi was involved in a vehicle collision does not support the imposition of punitive damages.  Accordingly, leave to amend the Complaint to add a claim for punitive damages is not granted at this time.

IV.     CONCLUSION

Defendants’ demurrer is SUSTAINED with 20 days’ leave to amend. 

Defendant’s motion to strike is taken off calendar as moot. 

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.