Case Number: 19STCV13644 Hearing Date: September 10, 2019 Dept: 4A

Demurrer with a Motion to Strike

Having considered the demurring and moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On April 19, 2019, Plaintiff Darrent Agee Merager (“Plaintiff”) filed a complaint against Defendants Christopher Abraham Bardarian and Roxana Shekarabi (“Defendants”) alleging an intentional tort (driving while under influence of alcohol or drugs) and negligence in relation to an automobile collision that occurred on April 21, 2017.

On July 31, 2019, Defendants filed a demurrer pursuant to California Code of Civil Procedure section 431.10 and a motion to strike pursuant to California Code of Civil Procedure section 435.

Trial is set for September 14, 2020.

PARTIES’ REQUESTS

Defendants ask the Court to sustain the demurrer to Plaintiff’s cause of action for intentional tort (driving while under influence of alcohol or drugs) as failing to state facts sufficient to state a cause of action and for being uncertain.

Defendants also ask the Court to strike punitive damages because insufficient facts have been pled to allow for such a prayer.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to or stricken, in person or telephonically, 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 and motion to strike.¿ (See Code of Civ. Proc. §§ 430.41, 435.5.)

Demurrer

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, supra, 147 Cal.App.4th at p. 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 complaint or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (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. (Code Civ. Proc. § 436, subd. (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”].) Conclusory allegations are subject to motions to strike. (Covenant Care, Inc. v. Superior Court (2001) 107 Cal.Rptr.2d 291, 303 (superseded on other grounds by Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771).)

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. (College Hospital, 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, subd. (a).)

“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294, subd. (c)(2).) “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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code § 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) 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.)

“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 Court (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 Court (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

The California Supreme Court has held that “the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 892.) Punitive damages may be sought where the allegations lead to the conclusion that “defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Id. at pp. 895-896.) In Taylor, the Supreme Court issued a writ directing the trial court to overrule the defendant’s demurrer to plaintiff’s punitive damages prayer based on a finding that the plaintiff’s allegations in that case met this standard.

The complaint in Taylor alleged, not only that defendant was intoxicated at the time of the accident, but also that he “had previously caused a serious accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident . . . [defendant there had] recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.” (Id. at 893.) What is more, the complaint alleged that defendant was already intoxicated and continuing to drink alcohol in his vehicle at the time of the accident. (Ibid.)

After Taylor, the Legislature amended the “malice” standard interpreted by the Supreme Court in that case to add the requirement that malicious conduct under section 3294 be shown to be “despicable” and “willful.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) As noted above, “[t]he statute’s reference to ‘despicable conduct’ represent[ed] ‘a new substantive limitation on punitive damage award.’” (Ibid. (quoting College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 725).)

The Court is aware of no case holding that an allegation of drunk driving standing alone can support a punitive damages prayer in an automobile accident case. Instead, the Court is required to assess whether a plaintiff’s allegations against a particular defendant, including his intoxicated driving, his other misconduct leading to the accident, and his prior bad acts and history, are sufficient taken together to show that defendant acted with a willful and conscious disregard for the probable dangerous consequences of his actions and that, under the circumstances, his conduct should be considered so vile, base, contemptible, or loathsome as to be deemed despicable. (See e.g., Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 936 (there was sufficient evidence of despicable conduct where an intoxicated defendant drove at a high rate of speed through a stale red light without stopping, but jury could still decline to award punitive damages); Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 85, 90 (characterizing intoxicated driving at excessive speed zigzagging around stream of traffic in area with many pedestrians and bicyclists as sufficiently “outrageous” and “reprehensible” to warrant punitive damages).)

DISCUSSION

Meet and Confer Requirement

The Court finds that Defendants have submitted a sufficient meet and confer declaration. (Both Declarations of Cindy Pham, ¶¶ 6-7.) The parties were unable to reach an agreement regarding the matters contained in the demurrer and motion to strike at bar. (Ibid.)

Demurrer

“The elements of a cause of action for battery 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.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) “In an action for civil battery[,] the element of intent is satisfied if the evidence shows defendant acted with a “willful disregard” of the plaintiff’s rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604 (citing Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.) “[T]he requirement of specificity is relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy . . . or when the facts lie more in the knowledge of the opposite party.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 (citation omitted).) “A demurrer for uncertainty can be overruled when the facts to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v Berenjian (2019) 33 Cal.App.5th 811, 822.)

The complaint alleges that Defendant Bardarian consumed or injected alcohol or drugs to the point of intoxication prior to operating a vehicle on April 21, 2017. (Compl., ¶¶ 9-10.) After intoxicated, Defendant Bardarian drove at a high rate of speed and, without warning, attempted an illegal U-turn and collided into Plaintiff’s vehicle, causing Plaintiff injuries. (Compl., ¶¶ 9, 13.) After the collision, Defendant Bardarian’s speech was slow and slurred, Defendant Bardarian was unable to pass field sobriety tests, and Defendant Bardarian was arrested for a DUI. (Compl., ¶ 11.) The complaint concludes that Defendant Bardarian willfully disregarded Plaintiff’s rights. (Compl., ¶ 12.)

The Court finds Plaintiff has alleged sufficient facts to state a cause of action for battery against Defendant Bardarian. Defendant Bardarian merely contests the intent element of Plaintiff’s cause of action. However, this pleading requirement is relaxed because Defendant Bardarian is in full possession of information regarding whether Defendant Bardarian harbored the intent to cause Plaintiff’s harm. Thus, the Court finds Plaintiff’s general allegation that Defendant Bardarian willfully disregarded Plaintiff’s rights to be sufficiently pled to defeat this demurrer.

With respect to the cause of action against Defendant Shekrabi, however, the Court rules that Plaintiff has not alleged sufficient facts to state a cause of action for battery against this defendant. The only factual contention pertaining to Defendant Shekrabi is that she “owned, repaired, controlled, entrusted, managed, supervised, drove and\or operated motor vehicles, including but not limited to, a motor vehicle identified as: 2015 Mazda3 I Sport.” (Compl., ¶ 6.) The same facts are alleged against Defendant Bardarian. (Compl., ¶ 5.) When cross-referenced with the numerous allegations that Defendant Bardarian was the driver of the vehicle that struck Plaintiff’s vehicle, Plaintiff’s contentions pertaining to Defendant Shekrabi can only be construed to mean that she “owned, repaired, . . . entrusted, managed, [and] supervised” Defendant Bardarian’s conduct in driving of the vehicle. There are no allegations amount to a contention that Defendant Shekrabi intended Plaintiff’s harm or did anything to cause such harm. Accordingly, insufficient facts have been alleged to state a cause of action for battery or any other intentional tort against Defendant Shekrabi.

Motion to Strike

The Court finds Plaintiff has not alleged sufficient facts to allow for a prayer for punitive damages. There are absolutely no facts alleging that Defendant Bardarian was aware of the probable dangerous consequences of taking an illegal U-turn while intoxicated, and that he willfully and deliberately failed to avoid those consequences. Unlike in Taylor, there are no allegations that Defendant Bardarian sustained recent DUI charges before the accident, that he was still obligated to comply with probation terms to address past transgressions, or that he had even one previous automobile accident while under the influence of drugs or alcohol. Nor are there allegations that Defendant Bardarian was ingesting more drugs or alcohol as he was driving under the influence. Unlike in Sumpter and Dawes, there are no allegations here that Defendant Bardarian engaged in outrageously hazardous driving that plainly and seriously endangered others.

However, even if such an allegation was present, Defendant Bardarian’s conduct could not be found to be despicable. Driving under the influence and taking an illegal U-turn, without any other facts in consideration, is not so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.

Further, there are insufficient allegations supporting a prayer for punitive damages against Defendant Shekrabi. For example, there are no allegations that Defendant Shekrabi knew of Defendant Bardarian’s intoxicated state prior to allowing Defendant Bardarian to operate the subject vehicle. Owning, repairing, entrusting, managing, and supervising one’s vehicle driven by another does not support a prayer for punitive damages.

CONCLUSION

The demurrer is SUSTAINED in part and OVERRULED in part.

The Court SUSTAINS the demurrer to the intentional tort (driving while under influence of alcohol or drugs) as to Defendant Shekrabi only.

The motion to strike is GRANTED.

The Court strikes the following language located in paragraph 13 of the complaint: “and as a further direct, legal and proximate result of Defendant’s conduct, Plaintiff is entitled to punitive and exemplary damages against Defendant CHRISTOPHER ABRAHAM BARDARIAN, in accordance with the provisions of California Civil Code §3294, in an amount according to proof at trial.”

The Court also strikes the following language located in paragraph 9 of the prayer for damages in the Complaint: “For exemplary\punitive damages in accordance to the provisions of California Civil Code Section 3294 et seq., according to proof at trial.”

Defendant is ordered to give notice of this ruling.