Case Name: Bailey v. Procter, et al.
Case No.: 17-CV-309080

Defendants James Owen Procter (“James”) and Kenneth Procter (collectively, “Defendants”) demur to the first amended complaint (“FAC”) filed by plaintiff Jeffrey Craig Bailey (“Plaintiff”) and move to strike portions contained therein.

This is a personal injury action arising out of a motor vehicle collision. According to the allegations of the Judicial Council form FAC, on May 4, 2015, at approximately two in the afternoon, Plaintiff was approaching the Santa Teresa Drive intersection in Morgan Hill (comprised of a four way stop) in his vehicle when he observed James approaching the same intersection from a different direction at a very high rate of speed. He further observed James fail to observe the stop sign, make an “unsafe and out of control right turn,” cross the double yellow line and then collide head on into the front of Plaintiff’s vehicle. As a result of the collision, Plaintiff sustained serious injuries.

Plaintiff further alleges that at the time of the collision, James was racing his vehicle and intended to drive through the stop sign and intersection at a high rate of speed in order to make a high speed right turn onto Watsonville Road.

On April 25, 2017, Plaintiff filed the Complaint asserting claims for: (1) motor vehicle; (2) general negligence; and (3) intentional tort. On July 26, 2017, Defendants filed a demurrer to the third cause of action in the Complaint on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty, as well as a motion to strike Plaintiff’s request for punitive damages, among other things. (Code Civ. Proc., §§ 430.10, subds. (e) and (f), 435 and 436.) On September 21, 2017, the Court sustained the demurrer with 10 days’ leave to amend and granted the motion to strike as to Plaintiff’s request for punitive damages.

On October 17, 2017, Plaintiff filed the FAC asserting claims for: (1) motor vehicle; (2) general negligence; (3) intentional tort- assault; and (4) intentional tort- battery. On November 3, 2017, Defendants filed the instant demurrer to the third and fourth causes of action in the FAC on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defendants also filed the motion to strike portions of the FAC, including Plaintiff’s request for punitive damages. (Code Civ. Proc., §§ 435 and 436.) Plaintiff opposes both motions.

Defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

I. Demurrer

The thrust of Defendants’ demurrer to the third and fourth causes of action in the FAC for assault and battery, respectively, is that Plaintiff has failed to plead facts demonstrating that James acted with “intent,” a necessary element of both claims. In his opposition, Plaintiff maintains that he has adequately pleaded this element. n

Generally speaking, the essential elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Yun Hee So v. Sook Ja Jin (2013) 212 Cal.App.4th 652, 668-669, citing CACI No. 1301.) As for a cause of action for battery, the essential elements are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching. (Id. at 669, citing CACI No. 1300.)

In tort actions for assault (and battery), courts “usually assume that [the] Penal Code definition[] and related criminal cases are applicable.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604.) The Supreme Court has held that proof of criminal assault “requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790; see also People v. Chance (2008) 44 Cal.4th 1164, 1169.)

Defendants insist that the actions James is alleged to have taken do not evidence the requisite intent to commit harm, and rely primarily on the case of People v. Cotton (1980) 113 Cal.App.3d 294 in support of this assertion, which they maintain stands for the proposition that reckless driving does not and cannot constitute an “assault” because there is no intent to commit a battery. In Cotton, the defendant was convicted of committing assault with a deadly weapon after colliding with other vehicles during a high-speed police chase. The appellate court reversed the conviction, finding that there was no evidence from which the jury could have inferred the intent on the part of the defendant necessary to support such a verdict. Defendants argue that a similar conclusion must be reached here, where James is alleged to have been driving recklessly at the time of the collision.

The holding of People v. Cotton has not fared well with the passage of time, and was expressly abrogated in People v. Aznavoleh (2012) 210 Cal.App.4th 1181. In that case, the defendant was convicted of assault with a deadly weapon after colliding with another vehicle while admittedly racing and deliberately running a red light. In affirming the conviction and rejecting the defendant’s argument that there was insufficient evidence to convict him of assault, the appellate court noted that “assault requires only a general criminal intent and not a specific intent to cause injury,” and opined that there was evidence that that the defendant had driven his vehicle with an intentional or conscious disregard for the safety of others. (People v. Cotton, 210 Cal.App.4th at 1186-1189, citing People v. Williams (2001) 26 Cal.4th 779, 782.) The court then explained that People v. Cotton did not compel a different result, explaining that:

[h]istory has vindicated the dissenting justice in Cotton, who reasoned in his dissent that there was “little difference from deliberately shooting a gun into a stalled car … and the deliberate manner, inherently dangerous to others with a conscious disregard for human life, in which the defendant herein propelled his car (like a bullet) through residential streets in the manner described. Defendant’s conduct could have resulted in the wiping out of pedestrians or entire families lawfully crossing intersections on green lights and unquestionably his conduct was so inherently dangerous to others displaying a conscious disregard for human life as to constitute an assault with a deadly weapon ….

(People v. Aznavoleh, supra, 210 Cal.App.4th at 1190.)

The court then reiterated that a defendant need not actually intend to commit an assault or battery or even be subjectively aware of the risk that such torts/crimes might occur in order to be found liable for them and “need only be aware of what he is doing.” (Id. at 1190.) That is, if an objectively reasonable person with knowledge of the subject facts would “appreciate that an injurious collision, i.e., a battery, would directly and probably result from his actions,” that defendant can be found culpable.

Plaintiff asserts that by pleading that just prior to the collision James was intentionally racing his vehicle and intended to drive through the stop sign and intersection at a high rate of speed in order to make a high speed right turn onto Watsonville Road, he has sufficiently pleaded the intent necessary to state claims for assault and battery in the vein of People v. Aznavoleh, because an objectively reasonable person with knowledge of such facts would appreciate that a collision with another vehicle was likely to result from such conduct.

In their reply, Defendants insist that the facts of People v. Aznavoleh are distinguishable from the case at bar because in the latter there was evidence that the defendant intentionally ran a red light while racing even though he saw a car entering the intersection on the green light and evidence that he made no effort to stop despite warnings from his fellow passengers to do so. In the instant case, Defendants contend, the facts alleged do not show an intentional act of driving towards another vehicle or racing another vehicle as they did in Aznavoleh, and thus their demurrer to the third and fourth causes of action should be sustained.

The Court is not persuaded by Defendants’ argument. While it is true that there are factual distinctions between the case at bar and Aznavoleh, it is also critical to note that the decision in Aznavoleh was rendered after trial, whereas the instant matter is merely at the pleading stage. For the purposes of pleading intent on the part of James, the Court finds Plaintiff’s allegations that he was racing his vehicle and intended to drive through the intersection though the stop sign and at a high rate of speed are sufficient to plead the intent necessary to state claims for assault and battery. In their reply, Defendants contend that any assertion by Plaintiff that James was racing at the time of the collision is entirely speculative, but the instant motion is not the place to challenge the veracity of this allegation. As the argument regarding intent is the only one asserted in support of Defendants’ motion and it is without merit, the demurrer to the third and fourth causes of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

II. Motion to Strike

With their motion to strike, Defendants move to strike the following allegations from the FAC:

 “Intentional Tort (Two),” page 3, paragraph 10(c);
 “punitive damages,” page 3, paragraph 14(a)(2);
 Pages 6 and 7 of the FAC entitled “Third Cause of Action- Intentional Tort (Assault),” in its entirety;
 Pages 8 and 9 of the FAC entitled “Fourth Cause of Action- Intentional Tort (Battery),” in its entirety; and
 Pages 10 and 11 of the FAC entitled “Exemplary Damages Attachment,” in its entirety.

As an initial matter, the Court notes that generally a pleading challenge to an entire cause of action must be done by a demurrer and not a motion to strike, especially where the basis of the challenge is that the claim is insufficiently pleaded, as it is here. (See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Defendants repeat their now-rejected contention that the third and fourth causes of action for assault and battery, respectively, should be stricken because Plaintiff has failed to state facts sufficient to show that James acted with “intent” as defined for the purposes of those claims. Even if this argument was persuasive, which it is not, it would be improper for the court to strike these claims in their entirety. Consequently, to the extent that Defendants’ motion to strike seeks to remove the third and fourth causes of action in their entirety from the FAC, it is DENIED.

Turning to the issue of punitive damages, the Court previously granted Defendants’ motion to strike the request for such damages in the Complaint based on Plaintiff’s failure to plead facts which entitled him to recover them. The right to exemplary or punitive damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.” (Civ. Code, § 3294, subd. (a).) For pleading purposes, in order to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages, but only to the extent that the complaint pleads facts to support those allegations. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

As they did in the Complaint, malice and intentional conduct serve as the foundation for Plaintiff’s request. Under the punitive damages statute, Civil Code section 3294, “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 Court found Defendants’ prior motion to strike the request for punitive damages in the Complaint meritorious because it concluded that Plaintiff had merely pleaded reckless, rather than intentional conduct, and therefore had not pleaded facts sufficient to entitle Plaintiff to recover such damages because “recklessness alone is insufficient to sustain an award of punitive damages.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) Plaintiff had argued in his opposition that James had been operating his vehicle “in a manner akin to racing” and thus acted with an intentional disregard for the safety of members of the public, i.e., malice, but had not actually pleaded as much in the Complaint.

The Court now finds that Plaintiff has pleaded sufficient facts demonstrating that James acted with malice by alleging that he sped excessively, made an unsafe and out of control right turn, crossed over double yellow lines, struck Plaintiff’s vehicle at a high rate of speed, intentionally sped through the subject intersection where the collision occurred, and was racing at the time of the collision. These allegations demonstrate more than mere recklessness on James’ part; they demonstrate despicable conduct, i.e., conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331), which was carried on by him with a “willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Consequently, Plaintiff has pleaded facts which entitle him to punitive (exemplary) damages and therefore to the extent that his motion seeks to strike his request for such damages, it is DENIED.