Case Number: BC723728 Hearing Date: May 31, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEMURRER AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT

I. INTRODUCTION

On October 1, 2018, Plaintiffs Young Kim and Minja Qu (collectively, “Plaintiffs”) filed this action against Defendant Rene Klaassen (“Defendant”). On March 13, 2019, the court granted Defendant’s motion to strike punitive damages with twenty (20) days’ leave to amend. On April 2, 2019, Plaintiffs filed a First Amended Complaint (FAC) for motor vehicle negligence, negligence per se, and intentional infliction of emotional distress arising out of an October 11, 2016 automobile accident. Defendant demurs to the second and third causes of action and moves to strike allegations relating to Plaintiffs’ prayer for exemplary damages.

II. LEGAL STANDARDS

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.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

III. DISCUSSION

Plaintiffs allege that on October 11, 2016, Defendant rear-ended Plaintiffs’ vehicle while it was completely stopped at a red light. (FAC, ¶ 6.) Plaintiffs also allege that immediately after rear-ending Plaintiffs’ vehicle, Defendant offered no assistance to the injured Plaintiffs and fled the scene of the accident, violating multiple traffic laws in the process of fleeing. (FAC, ¶¶ 13, 14.)

Meet and Confer Requirement

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 April 25, 2019, defense counsel met and conferred with Plaintiffs’ counsel and asking whether they would voluntarily dismiss the second and third causes of action. Plaintiffs’ counsel would not agree to voluntarily dismiss. (Declaration of Barbara A. Keough, ¶ 8.) Plaintiffs argue defense counsel’s meet and confer efforts were not made in good faith and that this demurrer is untimely because Defendant previously filed a motion to strike the third cause of action rather than filing a demurrer. The Court will exercise its discretion to rule on the merits of the demurrer since Plaintiffs filed an opposition addressing the merits of the demurrer and motion to strike.

Negligence Per Se

Defendant demurs to the second cause of action for negligence per se on grounds there is no separate cause of action for negligence per se. Negligence per se is an evidentiary doctrine whereby negligence may be presumed if the evidentiary requirements are met. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285 [“the doctrine of negligence per se does not establish tort liability. Rather, it merely codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation”].) “Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. [Citation.] Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.” (Ibid.)

Therefore, to the extent Plaintiffs allege negligence per se as a separate cause of action, the demurrer is SUSTAINED without leave to amend. However, Plaintiffs’ allegations as to negligence per se may remain in the pleading to the extent Plaintiffs intend to rely on the doctrine of negligence per se to prove their underlying negligence cause of action.

Intentional Infliction of Emotional Distress

Plaintiffs allege Defendant struck the rear of Plaintiffs’ vehicle and then fled the scene in violation of the vehicle code and in reckless disregard of the probability of causing Plaintiffs severe emotional distress and in conscious disregard of the rights of Plaintiffs.

The elements of intentional infliction of emotional distress are: (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress. (So, supra, 212 Cal.App.4th at p. 671.) “Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. The defendant’s conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.) “‘There is no bright line standard for judging outrageous conduct and “. . . its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical . . .” [Citation.]’” (Cochran v. Cochran (1998) 65 Cal.App.4th 448, 494.) Whether conduct is “outrageous” is usually a question of fact. (Ragland, supra, 209 Cal.App.4th at p. 204.) The tort does not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Cochran, supra, 65 Cal.App.4th at p. 496.)

Defendant argues “[f]ailure to stop and render aid constitutes negligence as a matter of law, in the absence of a legally sufficient excuse of justification” (Escobedo v. Travelers Ins. Co. (1961) 197 Cal.App.2d 118, 124), and negligent conduct does not amount to outrageous conduct. Defendant also argues he was not cited or charged with violating any of the hit-and-run Vehicle Code sections. Defendant argues that the very fact that this lawsuit was filed shows Plaintiffs were not deprived of their rights to seek legal remedies against Defendant when he fled the scene, and Plaintiffs clearly did not require assistance, as they were able to follow Defendant. Defendant also argues that the allegations of this cause of action conflict with the earlier complaint, but does not point out any specific direct contradictions.

Plaintiff argues that Defendant’s failure to stop and render aid, fleeing the scene, and giving police false information was intentional conduct meant to avoid criminal or civil liability and which caused emotional distress to Plaintiffs. Plaintiffs also alleged that they had to chase Defendant to obtain his license plate to hold him accountable, and that in an effort to evade Plaintiffs, Defendant drove erratically and illegally, speeding and zig-zagging through residential neighborhoods, failing to stop at stop signs and running red lights. (FAC, ¶ 14.) They argue that by fleeing the scene and forcing Plaintiffs to chase after him, Defendant caused them to suffer mental and emotional harm.

Defendant’s alleged conduct of failing to stop and then fleeing the scene in a dangerous manner is not the type of outrageous conduct “so extreme as to exceed all bounds of decency in a civilized community.” (Ragland, supra, 209 Cal.App.4th at 204.) That fleeing the scene of an accident is considered negligence as a matter of law (Escobedo, supra, 197 Cal.App.2d at p. 124), and not even gross negligence, illustrates that it is not considered extremely outrageous conduct. Plaintiff cites no legal authority that the manner of fleeing – here driving erratically and illegally in an attempt to evade responsibility – is considered such outrageous conduct.

Further, “the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation].” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) The defendant’s conduct must “be directed primarily at the plaintiff.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 904.) The conduct must be “of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Id. at p. 905 [emphasis in original].) Where the plaintiff does not allege the conduct of the defendant “was direct primarily at [the plaintiff], was calculated to cause [the plaintiff] severe emotional distress, or was done with knowledge of [the plaintiff’s] presence and of a substantial certainty that [the plaintiff ]would suffer severe emotional injury,” the allegations of intentional infliction of emotional distress are not adequate. (Id. at p. 906.)

The FAC does not contain such allegations. Plaintiffs allege that after rear-ending Plaintiffs’ vehicle, Defendant “proceeds to fleeing the scene of the accident in a manner designed to evade recognition and responsibility.” (FAC, ¶ 11.) Plaintiffs allege “[t]hese outrageous actions by defendant Klaassen were designed to deprive the plaintiffs of their legal right to receive assistance after the crash, to stop and exchange information, to identify the defendant and to obtain his information.” (FAC, ¶ 15.) Thus, according to Plaintiffs, Defendant was fleeing to evade responsibility and to deprive them of their legal rights. Plaintiffs do not mention that Defendant fled with the intent to cause Plaintiffs severe emotional distress. Later in the FAC, Plaintiffs make conclusory legal allegations about intent, but the specific factual allegations limit inconsistent general conclusions. (Financial Corporation of America, supra, 189 Cal.App.3rd at p. 769.)

Plaintiffs have failed to state a cause of action for intentional infliction of emotional distress. Therefore, the demurrer to the third cause of action is SUSTAINED. At the hearing, Plaintiffs should be prepared to explain how they would remedy the deficient allegations.

Motion to Strike

Defendant moves to strike the allegations about the fleeing, infliction of emotional distress, and request for punitive damages on the grounds they were stricken by the court’s prior order striking punitive damages and fleeing an accident does not give rise to a separate tort. Because the demurrer to the third cause of action is sustained, the motion to strike is moot.

IV. CONCLUSION

The demurrer to the second and third causes of action is SUSTAINED. The motion to strike is MOOT.

Moving party to give notice.