Case Number: BC700878 Hearing Date: August 19, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS BOB SIMON, REBECCA SIMON, AND EDUARDO FLORES’ DEMURRER; MOTION TO STRIKE

I. INTRODUCTION

On April 4, 2018, Plaintiff Rosalina Tsakalis (“Plaintiff”) filed this action against Defendants Elizabeth Reserva, Bob Simon, Rebecca Simon, Eduardo Flores, and Helen Flores alleging the following causes of action: (1) negligence; (2) assault and battery; (3) intentional infliction of emotional distress; (4) negligent supervision; (5) premises liability; and (6) employer liability for injuries resulting from work place violence. Plaintiff filed the operative First Amended Complaint (“FAC”) on May 7, 2019.

Plaintiff alleges injuries from a violent attack by Defendant Elizabeth Reserva (“Reserva”), the granddaughter of Defendants Eduardo Flores and Helen Flores (collectively, the “Flores Defendants”). Bob Simon and Rebecca Simon (collectively, the “Simon Defendants”) are the son-in-law and daughter of the Flores Defendants, and are Reserva’s uncle and aunt. Plaintiff was a caregiver for the Flores Defendants. Plaintiff alleges the Simon Defendants and Flores Defendants negligently allowed Reserva to walk and roam freely the premises, without proper supervision, and to intimidate, threaten, assault, and batter Plaintiff, including punching and beating her, pulling her to the floor and dragging her, and causing her to roll down the front steps. Plaintiff alleges the Simon Defendants and Flores Defendants knew, or should have known, Reserva (a) has a history of mental illness, being verbally abusive, and refusing to take her medication, (b) physically attacked another caregiver, (c) pushed Eduardo Flores on numerous occasions, and (f) previously put a knife to Defendant Eduardo Flores’ neck, and concealed this information from Plaintiff.

The Simon Defendants and Eduardo Flores filed this Demurrer and Motion to Strike Portions of Plaintiff’s First Amended Complaint (“FAC”). Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) On June 2, 2019, Defendants’ counsel sent correspondence to Plaintiff’s counsel addressing the issues raised in its demurrer. (Chidi Decl., ¶ 2, Exh. A.) Defendants’ counsel also attests to having had numerous telephone conversations with Plaintiff’s counsel on the issues raised in Defendants’ demurrer. (Id., ¶ 3.) The parties could not reach an agreement.

II. DEMURRER

The Simon Defendants and Eduardo Flores demur to the Third Cause of Action for Intentional Infliction of Emotional Distress (“IIED”).

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009 (citations omitted).) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.)

Defendants demur on the ground that Plaintiff does not plead “extreme and outrageous” conduct to support a claim for intentional infliction of emotional distress. Whether conduct is sufficiently “outrageous” to give rise to a cause of action for IIED is a fact question where reasonable minds may differ. (Cross v. Bonded Adjustment Bureau (1996) 48 Cal.App.4th 266, 283.) While the question is usually one of fact, many cases dismiss 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.) In this case, Plaintiff has alleged sufficient facts upon which reasonable minds may differ as to whether Defendants’ alleged conduct is sufficiently “outrageous” to give rise to a cause of action for IIED.

Plaintiff alleges Defendants knew of Reserva’s dangerous and violent propensities, mental health problems and prior attack on another caregiver, but concealed that information from Plaintiff, knowing of the possibility and risk that Plaintiff could be and would be subjected to bodily harm by Reserva. As a result, Plaintiff was caused to suffer severe mental anguish and emotional and physical distress. Construing the factual allegations as true, as the Court must on demurrer, the Court finds that Plaintiff has sufficiently alleged specific facts in the FAC upon which the jury may find that Defendants’ alleged conduct is sufficiently “outrageous” to give rise to a cause of action for IIED. A reasonable person could conclude that it is outrageous conduct beyond all possible bounds of decency to conceal from a caregiver employed to work in a private residence the fact that a person with access to the residence has mental health problems and a history of violent conduct, including attacking the previous caregiver.

Accordingly, Defendants’ Demurrer to the Third Cause of Action is OVERRULED.

III. MOTION TO STRIKE STANDARD

The Simon Defendants and Eduardo Flores also move to strike the requests for punitive damages.

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. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] 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. v. Superior Court (1994) 8 Cal.4th 704, 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.)

Further, “[t]here 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; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Defendants argues Plaintiff has failed to state a prima facie cases for punitive damages because Defendants did not commit despicable conduct with conscious disregard of Plaintiff’s rights and safety. Taking the factual allegations discussed above as true, Plaintiff has sufficiently alleged specific facts upon which the jury may find that Defendants’ alleged conduct was sufficiently outrageous, despicable, and carried out with a willful and conscious disregard of the rights or safety of others to support a claim for punitive damages.

Therefore, Defendants’ motion to strike is DENIED.

VI. CONCLUSION

The demurrer to the Third Cause of Action is OVERRULED. The motion to strike is DENIED.

Moving party to give notice.