EARL W. PULLEN;

Plaintiff,

vs.

JAMES ACORD; et al.;

Defendants.

Case No.: BC666694

Hearing Date: March 8, 2018

[TENTATIVE] order RE:

DEFENDANT’s Demurrer to FIRST AMENDED complaint

DEFENDANT’s MOTION TO STRIKE FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant, James Acord

RESPONDING PARTY: Plaintiff, Earl W. Pullen

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

Background

Plaintiff filed an initial complaint on June 28, 2017, alleging two causes of action for negligence and an intentional tort. Plaintiff and Defendant were involved in a motor vehicle crash on an off-ramp on the 405 freeway in Los Angeles. Defendant filed his first demurrer and motion to strike on November 1, 2017. Plaintiff opposed. On December 4, 2017, the Court sustained the demurrer with leave to amend and deemed the motion to strike moot. The Court also ordered stricken from the complaint the allegation “Defendant’s Insurance Company, AAA, thereafter admitted Defendant caused the crash.” (Complaint page 5, lined 2(d).)” (Minute Order 12/4/2017 at p. 1).

Plaintiff filed a First Amended Complaint (“FAC”) on January 5, 2018 and again on January 10, 2018. Upon review, the two FACs filed on January 5, 2018 and on January 10, 2018 appear to be the same. It is unclear why Plaintiff filed two apparently identical FACs. In any event, the Court on its own motion orders the later FAC, filed on January 10, 2018, stricken as improvidently filed without leave. The FAC filed on January 5, 2018 is deemed the operative pleading.

Defendant filed a demurrer and motion to strike on January 30, 2018. Plaintiff filed oppositions to both on February 21, 2018, and Defendant filed replies on March 1, 2018.

Plaintiff’s FAC alleges two causes of action: (1) “motor vehicle” and (2) an intentional tort. FAC at p. 3. Plaintiff prays for compensatory damages, punitive damage, and exemplary damages. (Id. at pp. 3, 5.) Unlike the original complaint filed in June 2017, the FAC does not contain a form PLD-PI-001(1) as to the first cause of action for motor vehicle, which makes it unclear whether Plaintiff is still pursuing the first cause of action. (Cf. Compl. at p. 4.) Plaintiff alleges Defendant collided with Plaintiff’s car on the 405 freeway off-ramp near Burbank Boulevard. (FAC at p. 4.) Plaintiff describes Defendant as six feet eight inches tall. Defendant got out of his car and “aggressively charged towards” Plaintiff. He was “yelling obscenities,” “waving his fists in the air,” and pointing at plaintiff in a “threatening, menacing manner.” (Id.) Plaintiff called 911 and was told to stay in the car and lock the doors. Plaintiff alleges Defendant lied to the police about the cause of the crash by saying another car forced him off the freeway. The police investigation determined that Defendant’s statement was false, and that Defendant caused the collision. (Id.) Plaintiff alleges defendant “intended to and did cause Pullen to suffer reasonable apprehension of immediate and intentional harmful contact” because Defendant intended to hit him and cause a great fear of attack. There was no consent. (Id.) In pleading damages, Plaintiff alleges “[d]efendant intended to and did act in conscious disregard of Plaintiff’s right to be free from such intentional tortious and unlawful misconduct by Defendant, such as to constitute fraud, oppression and malice, entitling Pullen to damages, including exemplary damages pursuant to California Civil Code Section 3294.” (FAC at p. 5).

Defendant’s Demurrer to the Second Cause of Action

Defendant demurs to Plaintiff’s second cause of action of an intentional tort. Defendant contends that the second cause of action fails to state facts sufficient to constitute a cause of action for an intentional tort under C.C.P. § 430.10(e). (Demurrer at pp. 4—5.) While Plaintiff does not use the word assault, Defendant argues Plaintiff is trying to allege assault. (Id. at p. 5.) Defendant contends that mere words, however threatening, will not amount to assault. (Id. at p. 6.) Defendant argues that Plaintiff could not reasonably believe he was going to be harmed because he remained in his locked car, and police and paramedics arrived shortly. (Id.) Plaintiff does not plead any facts about Defendant’s intent. (Id.)

Plaintiff opposes on the basis that he has pled every required element of assault. While Plaintiff remained in the lock car, Plaintiff argues the doors were not necessarily locked before he called 911. (Pl.’s Opp. to Demurrer to Am. Assault Claim at p. 5.) There was a period when the doors were unlocked. Moreover, staying in a locked car would not negate apprehension because Plaintiff reasonably inferred from Defendant’s demeanor that Defendant was going to beat him up. (Id.) Plaintiff further asserts that the police’s arrival shortly thereafter would not negate the existence of an assault because there is no minimum amount of time to constitute an assault. An assault can be of a short duration. (Id.) Finally, Plaintiff contends that there is no need to demonstrate Defendant’s intent clearly because assault is “complete when the anticipation of harm occurs.” (Id. at p. 6 (quoting Kiseskey v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d 222, 232)). Regardless, Plaintiff contends that the FAC clearly alleges intent because the Defendant threatened and intimidated plaintiff and made false statements to the police. (Id.)

Defendant’s Motion to Strike

Defendant also filed a motion to strike two portions of the FAC in which Plaintiff demands (1) punitive damages in paragraph 14(a)(2) on page three and (2) exemplary damages in paragraph 2(e) on page five. Defendant argues the requests for these damages have not been pled in conformity with the law. Under Civil Code section 3294(a), in non-contract cases, a plaintiff must prove that the defendant has been guilty of oppression, fraud, or malice in order to support an award of punitive damages. Defendant also argues that Plaintiff does not allege facts regarding Defendant’s intent to cause harm or fear of imminent harm, and that it was unreasonable to believe touch harmful or offensive touch was to occur. (Mt. to Strike Portions of Compl. at pp. 6-7.)

Plaintiff opposes the motion to strike and asserts that he has sufficiently pled facts in support of his demands for punitive and exemplary damages. Plaintiff’s claim for punitive damages stems from Defendant’s “reprehensible and intentional post-crash conduct,” including Defendant’s gesticulations and yelling. Pl.’s Opp. to Mt. to Strike Portions of FAC at p. 4.) Further, Defendant’s making false statements to the police about the cause of the accident demonstrates his malicious intent.

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 Bridwell, at ¶¶ 5—7.) Defense counsel sent correspondence to Plaintiff’s counsel on January 22, 2018, requesting to meet and confer about Plaintiff’s cause of action for intentional tort and the claim for punitive damages. Plaintiff’s counsel responded by email on January 24, 2018. Defense counsel declares the parties were not able to resolve the issues, requiring the filing of this demurrer and motion to strike.

Per CCP § 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…” CCP § 430.41(a) (emphasis added). Counsel’s declaration regarding correspondence and an email exchanged between the parties does not satisfy CCP § 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

The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 668–69.; See also Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Defendant’s FAC contains sufficient facts to state a cause of action for assault. With regard to the first element, Plaintiff alleges Defendant “aggressively charged towards” Plaintiff and yelled obscenities. (FAC at p. 4.) Defendant waved his fists in the air and pointed at Plaintiff in a “threatening” and “menacing” manner. (Id.) As to the second element, Plaintiff pleads he feared for his personal safety and needed to call 911. Plaintiff further alleges Defendant intended to harm Plaintiff by hitting him, and Plaintiff was in reasonable apprehension of such contact. (Id.) Third, Plaintiff did not consent to any of Defendant’s actions or statements. (Id.) Fourth, Plaintiff alleges he suffered damages including monetary damages and emotional distress. (Id. at pp. 3, 5.) Fifth, Plaintiff also alleges Defendant’s actions and statements caused Plaintiff’s damages. (Id. at p. 4.)

Defendant’s demurrer to the second cause of action for assault 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 for 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 demonstrate that Defendant’s actions amount to the standards of despicable conduct for malice. The profanities, shouting, aggressive gestures, as discussed above, are pled in conformity with the law to warrant an imposition of punitive damages.

In his reply, Defendant cites Tomaselli v. Transamerica Ins. Co. as defining “despicable” conduct in the context of punitive damages. ((1994) 25 Cal. App. 4th 1269.) Tomaselli concerns breach of contract and bad faith claims against an insurance company that refused to pay a plaintiff’s claim on a homeowner’s insurance policy. In that context, Tomaselli defined despicable conduct as having “the character of outrage frequently associated with a crime.” (Id. at p. 1287.) In analyzing punitive damages, the Court of Appeal examined the defendant’s actions in the context of it being an insurance company and found that being negligent, overzealous, legally erroneous, and callous did not warrant an award of punitive damages. (Id. at p. 1288.) The Court concluded that such actions did not add up to malice, oppression, or despicable conduct.

Most of the discussion in Tomaselli defining the contours of despicable conduct in the context of breach of contract and bad faith claims against an insurance company is inapplicable to the instant case where Plaintiff asserts a cause of action for assault. Moreover, applying the language in Tomaselli defining despicable conduct as having “the character of outrage frequently associated with a crime,” the Court finds that the FAC’s allegations regarding Defendant’s actions would meet that standard. Assault is a crime in California. (See Penal Code § 240.)

Conclusion

Defendant’s demurrer is OVERRULED.

Defendant’s motion to strike is DENIED.

Defendant is to answer within 10 days.

The moving party to give notice.

DATED: March 8, 2018 ___________________________

Elaine Lu

Judge of the Superior Court