Case Number: BC683915 Hearing Date: March 15, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

CRYSTAL G. SO;

Plaintiff,

vs.

CONSEULO MORALES; et al.;

Defendants.

Case No.: BC683915

Hearing Date: March 15, 2018

[TENTATIVE] order RE:

defendant morales’s Demurrer to FIRST AMENDED complaint

defendant morales’s MOTION TO STRIKE FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant, Conseulo Morales

RESPONDING PARTY: Plaintiff, Crystal G. So

The court considered the moving, opposition, and reply papers.

Background

Plaintiff Crystal G. So (“Plaintiff”) filed an initial complaint on November 16, 2017, alleging two causes of action for negligence and “punitive/exemplary damages.” (Compl. at p. 4.) Plaintiff and defendants Consuelo Morales and Rigoberto Davila were involved in a motor vehicle crash on the 101 freeway in Los Angeles on October 16, 2016. Defendants filed a first demurrer and motion to strike on December 27, 2017. Before the hearing for the demurrer, Plaintiff filed her First Amended Complaint (“FAC”) on January 12, 2018.

Defendant Consuelo Morales (“Defendant”) filed a demurrer to and motion to strike portions of the FAC on February 13, 2018. Plaintiff filed oppositions to both on March 1, 2018. Defendant filed replies on March 6, 2018.

The FAC alleges two causes of action: (1) negligence against both Defendants Morales and Davila and (2) punitive/exemplary damages against Defendant Morales only. Plaintiff alleges Defendant collided with Plaintiff’s car on the 101 freeway near the Moorpark Street exit. (FAC at ¶¶ 10, 21.) Plaintiff alleges Defendant Morales “committed a hit-and-run offense” and describes her as “a hit-and-run driver who committed a criminal act” because defendant fled the crash scene “without identifying herself or determining if Plaintiff needed aid or was injured.” (FAC at ¶ 20.) Plaintiff alleges a witness observed Defendant’s vehicle “facing traffic going the wrong way” and striking Plaintiff’s vehicle before striking the median twice. (FAC at ¶ 22.) Defendants fled on the northbound 101 freeway, according to the witness. (Id.) The same witness pursued Defendants until they exited the freeway and stopped at a gas station. (Id. at ¶ 23.) The witness asked Defendant why she fled the scene, but Defendant “backed up quickly, almost striking the witness’s vehicle, before accelerating” away. (Id.) Plaintiff alleges Defendant Morales fled the scene without exchanging information with Plaintiff and did not render assistance. (Id. at ¶¶ 24, 36.) She also alleges Defendant Morales did not have a driver’s license because a check of Department of Motor Vehicles records showed her license expired on June 25, 2002. (Id.) Plaintiff cites sections of the Vehicle Code that she alleges Defendant Morales violated. (Id. at ¶ 27.) Plaintiff alleges Defendant knew of the consequences and harms driving in such manner. (Id. at ¶ 33.) She describes Defendant’s actions as willful, deliberate, despicable, and malicious because she failed to avoid the consequences and risks of reckless driving. (Id.) She sustained injuries

Defendant Morales’s Demurrer to the Second Cause of Action

Defendant Morales demurs to Plaintiff’s second cause of action for punitive/exemplary damages because it does not state facts sufficient to constitute a cause of action under C.C.P. § 430.10(e). Defendant contends there is no such thing as a cause of action for punitive damages. (Demurrer at p. 4. (citing CRST, Inc. v. Superior Ct. (2017) 11 Cal.App.5th 1255, 1264; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391)). They argue punitive damages are only a remedy, and Plaintiff’s section cause of action is “fatally defective.” (Id. at p. 5.)

Plaintiff opposes on the grounds that punitive damages can be a cause of action, and she has stated sufficient facts in the FAC to allow such a recovery. She argues a motion to strike is the proper vehicle for which to challenge a claim for punitive damages in a complaint – not a demurrer. (Opp. to Demurrer at p. 7.) The claim for punitive damages is proper because the FAC contains material facts that justify an award of punitive damages in paragraphs 27 to 42. (Id. at pp. 9—12.) Plaintiff argues the labeling of punitive damages as a separate cause of action is proper. She classified it as such because a “cause of action” merely describes the “harm suffered, as opposed to the particular theory of recovery asserted.” (Id. at p. 13.) This cause of action is not duplicative of the first cause of action for negligence because the punitive damages cause of action adds an entirely different claim for damages. (Id. at p. 16.)

Defendant Morales’s Motion to Strike

Defendant has also filed a motion to strike portions of the FAC in which Plaintiff pleads and demands punitive damages. They argue the request for these damages have not been pled in conformity with the law. Under Civil Code Section 3294, the plaintiff must show there was animus malus or an evil motive before punitive damages can be awarded. (Mt. to Strike at p. 6.) Defendant argues there is no showing of an evil motive in Defendant’s conduct. Even if Defendant Morales’s driving against traffic was deemed negligent, Defendant contends it does not establish how there was an intent to harm Plaintiff. (Id.) Driving without a license does not constitute despicable conduct under Civil Code Section 3294. Defendant also takes issue with Plaintiff’s allegations surrounding the injuries caused by fleeing the scene of the crash. Punitive damages cannot be established because fleeing the scene did not cause Plaintiff’s injuries. Fleeing the scene cannot be the subject of a civil action. (Id. at p. 7.)

Plaintiff opposes the motion to strike those portions of the FAC referencing punitive damages. She argues there are specific facts showing malice and a conscious disregard of Plaintiff’s rights, especially in paragraphs 21 to 38. (Opp. to Mt. to Strike at p. 7.) Plaintiff cites sections of the Vehicle Code to argue Defendant faced criminal and civil liability because the crash was a hit-and-run. (Id. at pp. 11—12.) She argues punitive damages can be awarded when a driver decides to flee from the scene, to leave the victim without aid, and to try to escape responsibility for his or her actions. (Id. at p. 13 (citing Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1337)). Plaintiff argues the FAC contains sufficient facts to meet Defendant’s standard of animus malus because the conscious disregard of safety qualifies as an evil motive. (Id. at p. 16 (citing G.D. Searle Co. v. Superior Ct. (1975) 49 Cal.App.3d 22, 32; Dawes v. Superior Ct. (1980) 111 Cal.App.3d 82, 88).) The FAC’s allegations include those of intentionally fleeing the scene and intentionally causing injury to Plaintiff. (Id. at p. 16.)

LEGAL STANDARD

Meet and Confer Requirement

C.C.P. Section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C.C.P. § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at subd. (a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at subd. (a).)

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & 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 Ct. (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.)

Motion to Strike

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. (C.C.P. § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (C.C.P. §§ 436(a)-(b); 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”].)

Civil Code section 3294 authorizes punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” (Civil Code § 3294(a).) Pursuant to Civil Code Section 3294(c)(1), 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.”

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Ct. (1998) 67 Cal.App.4th 1253, 1255.)

“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct 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.” (Coll. Hosp., Inc. 8 Cal. 4th at 725 (examining Civ. Code § 3294(c)(1)).

DISCUSSION

Meet and Confer Requirement

Defendant attempted to meet and confer with Plaintiff’s counsel as required under the statute. (Decl. of Lindner at ¶ 3.) Defense counsel sent correspondence to Plaintiff’s counsel on January 24, 2018, asking Plaintiff’s counsel to withdraw the punitive damage cause of action for the reasons argued in demurrer and motion to strike. Counsel followed up with a telephone call on January 26, 2018, but was unable to speak with him. Plaintiff’s counsel responded by email on January 30, 2018, stating he would not agree to Defendant’s request. Another telephone call was made on February 1, 2018, but Plaintiff’s counsel was unavailable. A voice message was left. Plaintiff’s counsel left a voice message on February 2, 2018, denying Defendant’s request again. Defense counsel does not declare that she ever spoke to Plaintiff’s counsel in person or live on the telephone, limiting her interactions to voice messages and e-mails.

Per C.C.P. § 430.41(a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer…” C.C.P. § 430.41(a) (emphasis added). Counsel’s declaration regarding correspondence and voice messages exchanged between the parties does not satisfy C.C.P. § 430.41(a)’s requirement that the parties meet and confer in person or by telephone.

On this occasion, the Court will proceed to address the merits of the demurrer despite the insufficiency of the meet and confer. However, for any future demurrers that may be filed in this action, the Court cautions that an insufficient meet and confer, such as what occurred prior to the instant demurrer, will result in the demurrer being placed off calendar.

Demurrer Analysis

While inartfully labeled, Plaintiff’s second cause of action in the FAC is sufficiently pled to withstand the demurrer. A plaintiff may properly bring a cause of action for fleeing the scene of an automobile accident separate from the negligence involved in the accident itself. Here, the second cause of action is labeled as one for “punitive damages,” but the contents of Plaintiff’s pleadings for the second cause of action reflect that Plaintiff is seeking punitive damages based on hit-and-run negligence.

The duty to stop and render aid “is imposed upon a driver regardless of fault, and a violation gives rise to civil liability if it is the proximate cause of further injury or death.” (Karl v. C.A. Reed Lumber Co. (1969) 275 Cal.App.2d 358, 361; Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679.) “Failure to stop and render aid constitutes negligence as a matter of law, in the absence of a legally sufficient excuse or justification.” (Karl, supra, 275 Cal.App.2d at 361; Brooks, supra, 40 Cal.2d at 679.) Thus, “failure to stop and render aid after an injury-causing accident may constitute an independent wrong irrespective of any legal responsibility for the original injury.” (Karl, supra, 275 Cal.App.2d at 361; Escobedo v. Travelers Ins. Co. (1964) 227 Cal.App.2d 353, 359; Brooks, 40 Cal.2d at 678.)

The failure to stop and render aid has a “two-fold significance: (1) It may result in liability for the aggravation of injuries sustained in the accident or additional injuries incurred after it; (2) it may constitute evidence of responsibility for the accident. Failure to stop and render aid is some evidence of a consciousness of responsibility for the original accident, regardless of post-collision injuries.” (Karl, supra, 275 Cal.App.2d at 362.)

Though labeled as a cause of action for punitive damages against Defendant Morales, Plaintiff’s second cause of action here is really a cause of action for negligence based on Defendant’s failure to stop and render aid. This cause of action seeks redress for the injuries Plaintiff sustained by virtue of Defendant’s actions in fleeing the scene apart from and beyond the injuries Plaintiff sustained from the motor vehicle accident itself. The second cause of action contains citations to several sections of the Vehicle Code and describes how Defendant Morales violated each of them (FAC at ¶¶ 26–32.) These sections require a driver to stop after colliding with another car or pedestrian, and these sections make it a crime to flee the scene of an accident. (Id. at 27—30.) The FAC includes detailed factual allegations, including Defendant’s driving away after the crash. (FAC at ¶¶ 21—24.) After Defendant crashed into Plaintiff, Plaintiff was in distress and in possible need of medical care. (Id. at ¶ 32.) Defendant did not stop or provide aid or assistance and instead fled the scene. Finally, Plaintiff alleges ensuing injury that Plaintiff sustained as a result of the hit and run beyond the injuries from the accident itself. Specifically, Plaintiff alleges that Defendant’s breach of the duty to stop and render aid failure was the “proximate cause and reason for Plaintiff’s severe and enduring emotional distress and anguish, including but not limited to fear, anxiety, depression, suffering, grief, worry, and shock.” (Id. at ¶ 37.)

Defendant’s demurrer to the second cause of action is OVERRULED.

Motion to Strike

In looking at the complaint as a whole and in the context of the facts alleged, Plaintiff has pled sufficient facts to support a claim of punitive damages under Civil Code section 3294. Section 3294 defines malice as conduct “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.” (Id.) Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (See Coll. Hosp. v. Superior Ct. (1994) 9 Cal.4th 704, 726.) The statute “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.” (Id.)

Plaintiff’s allegations concerning Defendant Morales’s actions rise to the level of despicable conduct for malice. According to the FAC, Defendant drove the wrong way (FAC at ¶ 22), crashed into Plaintiff’s car (Id.), and fled the scene (Id. at ¶¶ 23—24). In doing so, “Defendants knew and were aware of the probable dangerous consequences of operating a vehicle in such a manner.” (Id. at ¶ 33.) Plaintiff alleges these actions were a “willful and conscious disregard for the safety of others, including Plaintiff.” (Id. at ¶ 34.) After the crash, Plaintiff was in distress and in possible need of medical care. (Id. at ¶ 32.) However, Defendant fled the scene and did not render or call for assistance, as statutorily required. (Id. at ¶¶ 35(c), 36.) Finally, the FAC alleges that a witness followed Defendants after the collision to a gas station parking lot. When the witness confronted Defendant about the hit and run she had just committed, Defendant’s response was to back up quickly, “almost striking the witness’s vehicle, before accelerating” away. (Id. at ¶¶ 22—23).

These factual allegations of the FAC are sufficient to rise to the level of despicable conduct and malice and to support a claim for punitive damages. Defendant’s motion to strike is DENIED.

Conclusion

Defendant’s demurrer is OVERRULED.

Defendant’s motion to strike is DENIED.

Defendant is to file and serve an answer within 10 days.

The moving party to give notice.

DATED: March 15, 2018 ___________________________

Elaine Lu

Judge of the Superior Court