Case Number: BC667923 Hearing Date: March 26, 2018 Dept: 92

KEYVAN SHAHROUZ,

Plaintiff(s),

vs.

DIANA POURMORADI et al.,

Defendant(s).

Case No.: BC667923

[TENTATIVE] ORDER (1) OVERRULING THE DEMURRER TO THE FIRST CAUSE OF ACTION AND SUSTAINING THE DEMURRER TO THE SECOND CAUSE OF ACTION; and (2) GRANTING THE MOTION TO STRIKE

Dept. 92

1:30 p.m.

March 26, 2018

The Demurrer by Diana Pourmoradi is OVERRULED as to the First Cause of Action for Motor Vehicle Negligence and SUSTAINED as to the Second Cause of Action for Intentional Infliction of Emotional Distress. The Motion to Strike by Diana Pourmoradi is GRANTED in entirety. Plaintiff is granted fifteen days’ leave to amend.

I. Background Facts

On July 7, 2017, plaintiff Keyvan Shahrouz (“Plaintiff”), filed a complaint against defendants Diana Pourmoradi (“Pourmoradi”) and Does 1 to 100 alleging causes of action for (1) motor vehicle negligence, (2) intentional infliction of emotional distress and (3) assault. The motor vehicle negligence cause of action contains claims for negligence per se based on violations of Vehicle Code sections 21460 and 21801(b). The assault claim is alleged only against Does 1 and 2.

The complaint alleges the following: 1) on May 31, 2017, Pourmoradi negligently owned, maintained, operated, and drove her vehicle thereby causing a motor vehicle collision with Plaintiff’s vehicle. (Complaint ¶¶ 7-8); 2) Pourmoradi was talking on a cell phone she had in her hand and entered the intersection from the wrong lane and without yielding to Plaintiff who had control of the intersection. (Id. ¶¶ 6 and 8); and 3) After the collision, Pourmoradi, Doe 1 and Doe 2 refused to provide Plaintiff with any identifying information and Doe 1 and Doe 2 would not let Plaintiff speak to Pourmoradi and acted menacingly such that Plaintiff felt threatened for his well-being and left with the fear that Doe 1 and Doe 2 would do great bodily harm. (Id. ¶ 31.)

On February 16, 2018, Pourmoradi demurred to the first and second causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action. (CCP § 430.10 (e).) Pourmoradi also filed a motion to strike the portions of the complaint. On March 9, 2018, Plaintiff filed oppositions.

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

III. Discussion

a. Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.) The Court notes that Pourmoradi has fulfilled the meet and confer requirement. (See Declaration of Dave H. Hitch.)

b. First Cause of Action: Motor Vehicle Negligence and Negligence Per Se

Pourmoradi contends that Plaintiff cannot assert a claim for negligence per se because negligence per se is not a cause of action but rather an evidentiary presumption. Plaintiff opposes on the ground that negligence per se is not being alleged as a separate cause of action but rather within the negligence cause of action and thus it has been properly plead.

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917–918.) Negligence per se claim is not a separate cause of action (see Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549, 555; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285), rather, it is a separate theory of negligence upon which recovery may be based. (See e.g., Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1086-87.)

Here, the Court finds that Plaintiff is not alleging negligence per se as a separate and independent cause of action, rather negligence per se is alleged as a part of the motor vehicle negligence claim. Thus, Pourmoradi’s concern about negligence per se as an independent claim is unwarranted. Additionally, while negligence per se may not have to be pleaded as noted by Pourmoradi in the demurrer papers, the demurrer fails to provide authority which provides that Plaintiff cannot allege violations of specific sections of the Vehicle Code which amount to negligence per se. Furthermore, the demurrer does not challenge the sufficiency of the motor vehicle negligence claim, but rather portions of this claim labeled as negligence per se. This is improper as a demurrer does not lie to a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83.)

Accordingly, the demurrer to the first cause of action, which contains claims for negligence per se is OVERRULED.

c. Intentional Infliction of Emotional Distress (“IIED”)

Pourmoradi contends that the complaint fails to allege facts indicating that she acted with extreme and outrageous conduct required to state a claim for IIED. Plaintiff opposes on the ground that the complaint sufficiently alleges that Pourmoradi’s actions as alleged in the complaint are sufficient to establish that Pourmoradi acted in an extreme and outrageous manner.

A cause of action for IIED exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) With regard to the first element, IIED calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)

While the question of whether conduct is in fact outrageous is usually a question of fact, many cases have dismissed IIED claims on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law. (See, e.g., Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1608–1609.)

Notably, the complaint is comprised of two parts, the first being allegations concerning Pourmoradi’s negligent conduct that lead to the initial collision that injured Plaintiff and the second part being allegations concerning Pourmoradi’s, Doe 1’s and Doe 2’s conduct after the collision.

To the extent that the IIED claim is based on Pourmoradi’s negligence in operating a vehicle while on the phone and by entering an intersection without yielding to Plaintiff, the Court finds that such conduct of mere negligence does not exceed all bounds of that usually tolerated in a civilized community. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) Thus, Pourmoradi’s alleged negligent conduct does not rise to the level of extreme and outrageous conduct that is sufficient to state a cause of action for IIED. Rather, these allegations establish a cause of action for motor vehicle negligence.

The IIED claim seems to be primarily based on the second set of allegations concerning the conduct of Pourmoradi, Doe 1 and Doe 2 in interacting with Plaintiff after the accident. The Court finds that Plaintiff has not stated facts sufficient to establish that Pourmoradi’s conduct following the accident exceeds all bounds of that usually tolerated in a civilized community. (Hughes, 46 Cal.4th at 1050-51.)

Notably, the complaint alleges that following the accident, Pourmoradi, Doe 1 and Doe 2 refused to provide Plaintiff with identifying information. (Complaint ¶ 31.) The act of not providing identifying information does not by itself rise to the level of extreme and outrageous conduct. (See Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 [stating that IIED does not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”].) The complaint also seems to allege that Doe 1 and Doe 2 would not let Plaintiff speak to Pourmoradi and acted menacingly and made Plaintiff feel threatened. (Complaint ¶ 31.) First, except for the conclusory allegation that Doe 1 and Doe 2 acted menacingly, there are no facts which show what this menacing conduct consisted of, thus this is simply a conclusory allegation.

More importantly, it is unclear whether Pourmoradi is alleged to have acted menacingly and if she did, there are no facts which show how she acted menacingly. While the opposition seems to allege that Pourmoradi directed Doe 1 and Doe 2 to act menacingly, no such allegations are made in the complaint. The Court notes that the complaint does allege that Pourmoradi intended to cause Plaintiff emotional distress, however, this is a legal conclusion because it is not supported by facts.

The allegations of Pourmoradi’s conduct after the accident do not constitute extreme and outrageous conduct such that it goes beyond all possible bounds of decency, and is to be regarded as atrocious, and utterly intolerable in a civilized community. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)

Accordingly, the demurrer to the second cause of action is SUSTAINED with fifteen days’ leave to amend.

d. Motion to Strike

Pourmoradi moves to strike moves the Court to strike the following from the complaint: (1) Page 4, paragraph 16; (2) page 8, paragraph 41; and (3) page 9 paragraph 4.

Pourmoradi moves the Court to strike Plaintiff’s allegations of and prayers for punitive damages on the ground that the complaint fails to plead facts sufficient to support a claim for punitive damages. The Moving Party also moves to strike allegations referring to conscious disregard on the ground that there are insufficient facts to constitute such conduct. Plaintiff opposes on the ground that the FAC alleges sufficient facts to support a claim for punitive damages.

The Court notes that as analyzed above, the demurrer to the IIED claim was sustained. Thus, the punitive damages allegations and prayer against Pourmoradi are solely based on the motor vehicle negligence cause of action since the third cause of action for assault is not alleged against Pourmoradi.

A motion to strike punitive damages allegations, specifically, may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See e.g., Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civil Code § 3294(a).)

Malice is defined as either 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(c)(1).) 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. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331, [citation omitted].) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Though the instant matter does not involve drunken driving, Taylor v. Superior Court (1979) 24 Cal. 3d 890 (hereafter, “Taylor”) is instructive with respect to the facts of this case. In Taylor, the court discussed punitive damages, and fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated. (Id. at 892.) The Taylor court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Emphasis added.) (Id. at 892.)

Notably, the court in the subsequent decision of Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, held that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (Emphasis added.)

Notably, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code Section 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard.

In light of the analysis above, the Court finds that the complaint fails to allege specific facts warranting the award of punitive damages. As discussed in Taylor and Dawes, specific factual circumstances in addition to the intoxication or in this case driving while distracted, must be pled which show that the risk of injury was probable, Here, Pourmoradi is alleged to have been using her phone at the time of the collision and that she failed to yield to Plaintiff in an intersection. (Complaint ¶ 6-8). The fact that Pourmoradi was on her cellphone does not show that she was acting with such vile, wretched and loathsome conduct to constitute malice such that the imposition of punitive damages is proper. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.)

Accordingly, the motion to strike is GRANTED in entirety. Plaintiff is granted fifteen days’ leave to amend.

Moving Party is ordered to give notice.