Case Number: BC581339 Hearing Date: August 04, 2015 Dept: 91
Defendant’s motion to strike Plaintiff’s claim for punitive damages is GRANTED.

Plaintiff Mauro Ortega allegedly was struck by Defendant Amos Broughton while walking on private property. Plaintiff alleges that Defendant wrongfully withheld his identifying information, fled the scene, and intentionally left Plaintiff injured on private property. Plaintiff is suing Defendant for: (1) Motor Vehicle Negligence; and (2) Intentional Infliction of Emotional Distress.

A motion to strike punitive damages from a complaint is appropriate where the facts alleged are insufficient to warrant imposition of punitive damages. (See Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 64.) Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.) Civil Code section 3294, subdivision (a) 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.”

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894 [emphasis added]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

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).) “[T]o establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless. There must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

Oppression is defined as “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).) Conduct is despicable when it can be characterized as “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people,” or “having the character of outrage frequently associated with a crime.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Whereas “malice” requires willful conduct, “oppression” does not. (See Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1225-26.)

Fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd. (c)(3).) Intent to injure is prerequisite to punitive damages award for fraud. (In re Molina (9th Cir.) BAP Cal. 1998, 228 B.R. 248.)

Plaintiff alleges that Defendant hit him with his vehicle, apparently by accident. (Complaint, ¶ 10.) Plaintiff then demanded that Defendant provide his identifying information, as required under Vehicle Code section 20003, subdivision (a). (Ibid.) Defendant refused, and told Plaintiff that he did not care if the police were called. (Id., ¶¶ 10, 26) “Defendant exhibited the most cavalier stance imaginable, and dared Plaintiff to report him….” (Id., ¶ 12.) Defendant then left the scene. (Id., ¶ 10.) Defendant’s sole intention was to “prevent[] Plaintiff from being able to provide the police with accurately identifying information for them to locate Defendant.” (Id., ¶ 26.) “Defendant knew, or… should have known, that as a result of his flight…, Plaintiff would suffer emotional injury.” (Ibid.) It is not clear whether Defendant left before the police arrived. Further, Plaintiff alleges that the police later visited Defendant at his home, whereupon Defendant “intentionally and fraudulently represented [to the police] that no impact occurred, and… tried to blame Plaintiff for the subject incident, claiming that Plaintiff was trying to ‘scam’ him.” (Id., ¶ 11.) In so doing, Defendant “purposefully impugn[ed] Plaintiff’s character and integrity as a means of avoiding responsibility under the law.” (Id., ¶ 12.)

The allegations do not rise to the level of despicable conduct, defined as “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., 4 Cal. App. 4th 306, 331 (Cal. App. 2d Dist. 1992). The first cause of action is for negligence, and Plaintiff is relying on post-accident conduct to support the claim for punitive damages. This is not relevant to punitive damages related to the negligence cause of action itself. See 2-3900 CACI DAMAGES 3940 (“[t]he purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.”; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340 (“the conduct made criminal by Vehicle Code section 20001, subdivision (b) is fleeing the scene of an injury accident without providing the required information or rendering assistance, rather than causing or being involved in the accident itself”; in a civil right of action available for violation of Vehicle Code section 20001 and 20003, recoverable damages will be “limited to those caused by fleeing rather than damages caused by the accident itself.”)

As to the intentional infliction of emotional distress claim, the punitive damages allegations also are not sufficient. “[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ or a degree of aggravation which would entitled the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 [ellipsis and quotations omitted].)

To recover for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant engaged in “outrageous” conduct; (2) the defendant did so with intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering resulted; and (4) the defendant’s conduct was the actual and proximate cause of the plaintiff’s emotional distress. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 617.)

To be “extreme and outrageous,” conduct must “exceed[] all bounds of decency usually tolerated by a decent society,” and be “especially calculated to cause… mental distress.” (Ibid.) “Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Id.) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved of on other grounds by White v. Ultramar, Inc. (1999) 21 Cal.4th 563.)

Also, severe emotional distress means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (See, e.g., Girard v. Ball (1981) 125 Cal.App.3d 772, 787-88.)

Here, while some conduct plaintiff relies on is likely privileged (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 364. (“a statement urging law enforcement personnel to investigate another person’s suspected violation of criminal law, to apprehend a suspected lawbreaker… is shielded from tort liability….”)), the non-privileged conduct may well be the sort of “pretty oppression” that is non-actionable. (Fisher, 214 Cal.App.3d at 617). If actionable, it is barely so and does not reach the Civ. Code § 3294 standard.