Case Number: BC700862 Hearing Date: August 22, 2018 Dept: 3

YOUSEF SHADI et al.,

Plaintiff(s),

vs.

HANS JKEVIN WALTON et al.,

Defendant(s).

Case No.: BC700862

[TENTATIVE] ORDER SUSTAINING THE DEMURRER TO THE FOURTH CAUSE OF ACTION AND GRANTING THE MOTION TO STRIKE

Dept. 3

1:30 p.m.

August 22, 2018

The Demurrer to the fourth cause of action is SUSTAINED without leave to amend. In light of the Court sustaining the demurrer to the fourth cause of action, the motion to strike (1) Page 10, the entire fourth cause of action for punitive damages and (2) the entire paragraph 56 is MOOT. The Court GRANTS the motion to strike (3) the entire sentence number 4 under Prayer for Relief on page 12 and (4) the entire sentence number 9 under Prayer for Relief on page 12 (punitive damages). The burden is on Plaintiffs to make an offer of proof at the hearing on how the pleading can be reasonably amended to warrant punitive damages. (See Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349.)

I. Background Facts

On April 4, 2018, plaintiffs Yousef Shadi, Jila Shadi Parhami, Mojgan Pirian and Sara Barkhordari (collectively “Plaintiffs”) filed a complaint against defendants Hans Kevin Walton (“Walton”), Hans Kevin Walton dba Hans Auto Parts, Copart Auto-Dallas Inc and Does 1 to 10 alleging causes of action for (1) wrongful death, (2) vicarious liability, (3) negligent hiring, supervision or retention of employee, (4) punitive damages and (5) survival action. On June 6, 2018, Plaintiffs filed a first amended complaint (“FAC”).

The Court notes that while the first page of the FAC states that Plaintiffs only allege four causes of action, the body of the FAC includes five causes of action including a cause of action for punitive damages.

The FAC in relevant part alleges that: 1) Plaintiffs are the surviving children and successors in interest of decedent Parvin Shadi. (FAC ¶ 1-4); 2) On July 15, 2016, decedent was struck by a motor vehicle driven by Walton. (Id. ¶ 12); 3) Walton was distracted by his cell phone while waiting at a stop light and decided to proceed through the intersection without checking that the cross walk was completely clear of pedestrians. (Id. ¶ 13); 4) Decedent Parvin Shadi was walking in the crosswalk at the time and was struck by Walton’s vehicle. (Id. ¶ 14); 5) Walton was operating his vehicle while in the course and scope of employment with Copart Auto-Dallas Inc (Id. ¶ 19); 6) Walton is guilty of malice because he drove a vehicle capable of great force and speed with sharply impaired physical and mental facilities (distracted by his phone) and with a very commonly understood risk of the injurious consequences of the conduct. (Id. ¶ 56); and 7) As a result of this conduct, Walton struck and killed the decedent and was later convicted of Penal Code section 192(c) vehicular manslaughter. (Id.)

On July 20, 2018, Walton and Hans Kevin Walton dba Hans Auto Part (jointly “Moving Party”) filed a demurrer and a motion to strike. On August 9, 2018, Plaintiffs filed oppositions and on August 14, 2018, Moving Party filed a reply.

II. Legal Standard

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, 147 Cal.App.4th at 747.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

III. Discussion

a. Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike 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. (CCP §§ 430.41 and 435.5.) The Court notes that Moving Party has fulfilled the meet and confer requirement prior to filing this demurrer. (See Decl. Rossi)

b. Fourth Cause of Action: Punitive Damages

Moving Party demurs to the fourth cause of action for punitive damages on the ground that punitive damages is not a proper cause of action. Additionally, Moving Party argues that the fourth cause of action is uncertain because it is unclear who it is being alleged against in violation of California Rule of Court 2.112. The opposition concedes that there is no independent cause of action for punitive damages, however, the opposition argues that Plaintiffs are entitled to punitive damages as an element of damages.

There is no cause of action for punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163–64.) Rather, “punitive or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances [set forth in Civil Code section 3294] …. ‘Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.’” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163–64.)

Accordingly, the Court finds that the FAC has improperly alleged a cause of action for punitive damages. Thus, the demurrer to the fourth cause of action is SUSTAINED. Therefore, a discussion of uncertainty is unnecessary.

The Court notes that to the extent that the demurrer challenges the sufficiency of the prayer for punitive damages, since punitive damage is not a separate cause of action, a motion to strike rather than a demurrer is the appropriate method of challenging the sufficiency of this remedy. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

c. Motion to Strike

Moving Party moves to strike the following from the FAC: (1) Page 10, the entire fourth cause of action for punitive damages, (2) entire paragraph 56; (3) entire sentence number 4 under Prayer for Relief on page 12; and (4) entire sentence number 9 under Prayer for Relief on page 12.

The Court notes that in light of the Court sustaining the demurrer to the fourth cause of action, request (1) and (2) are MOOT. The Court also notes that the opposition concedes that pain and suffering, mental anguish and loss of enjoyment of life should be stricken for the prayer for relief. (Opposition to Motion to Strike at 6:13-16.) Thus, the Court GRANTS the motion to strike the entire sentence number 4 under Prayer for Relief on page 12.

As to the prayer for punitive damages, Moving Party moves the Court to strike Plaintiffs’ prayer for punitive damages on the ground that the FAC solely pleads a claim for negligence and thus the FAC fails to plead facts sufficient to support a claim for punitive damages. Plaintiffs oppose on the ground that the FAC alleges sufficient facts to support a claim for punitive damages.

The Court notes that Moving Party correctly argues that Plaintiffs cannot recover punitive damages pursuant to the first cause of action for wrongful death. (See Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751.) Furthermore, the Court sustained the demurrer to the fourth cause of action. Therefore, Plaintiff’s recovery for punitive damages against Moving Party is solely based on the fifth claim for survival action since the second cause of action is directed at defendant Copart Auto-Dallas Inc. (See Garcia v. Superior Court (1996) 42 Cal. App. 4th 177, 180, 187; see also Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751.)

Therefore, the issue is whether the survival cause of action states sufficient facts to warrant punitive damages.

A motion to strike punitive damages allegations, specifically, may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See e.g., Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Civil Code § 3294 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. (Civil Code § 3294(a).)

Malice is defined as either 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. (Civil Code § 3294(c)(1).) 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. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331, [citation omitted].) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Though the instant matter does not involve drunken driving, Taylor v. Superior Court (1979) 24 Cal. 3d 890 (hereafter, “Taylor”) is instructive with respect to the facts of this case since the FAC alleges that Moving Party was distracted by his cell phone while driving. (FAC ¶ 13.) In Taylor, the court discussed punitive damages, and fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated. (Id. at 892.) The Taylor court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Emphasis added.) (Id. at 892.)

Notably, the court in the subsequent decision of Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, held that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (Emphasis added.)

Notably, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code Section 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. There has been no subsequent decision holding that drinking and driving, without exacerbating circumstances that make injury probable, gives rise to a claim for punitive damages.

In light of the analysis above, the Court finds that the FAC fails to allege specific facts warranting the award of punitive damages. As discussed in Taylor and Dawes, specific factual circumstances in addition to the intoxication or in this case driving while distracted, must be pled which show that the risk of injury was probable.

Here, there are no allegations that Walton was driving at excessive speeds or that he was zig zagging through traffic while on his cell phone or that he knew that there were pedestrians in the crosswalk in front of him and that he decided to go forward despite this knowledge. Rather, Walton was allegedly distracted by his cell phone, while waiting at a stop light. (FAC ¶ 13.) Then without checking in front of him, Walton decided to proceed across the crosswalk and struck decedent. (Id.) The Court notes that the fact that Walton was on his cellphone does not show that he was acting with such vile, wretched and loathsome conduct to constitute malice such that the imposition of punitive damages is proper. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Notably, the opposition seems to indicate that Walton was checking the navigation on his phone. (Opposition to Motion to Strike at 3:23-24.) However, this sort of conduct is not unlawful. (See Veh. Code section 23123(a); People v. Spriggs (2014) 224 Cal.App.4th 150, 165 [Defendant who held his cellular telephone in his hand and looked at a map application while driving did not thereby commit the offense of using a wireless telephone while driving.].)

The Court additionally notes that the opposition seems to place emphasis on the allegation that Walton was convicted of Penal Code section 192(c) – vehicular manslaughter. (Opposition to Motion to Strike at 5:2-8.)

Penal Code section 192 in relevant part provides that manslaughter is the unlawful killing of a human being without malice. One of the three kinds of manslaughter provided by Penal Code section 192(c) is vehicular manslaughter. Penal Code section 192(c) which provides that:

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This paragraph does not prevent prosecution of a defendant for the crime of murder.

First, the allegations of Walton’s conviction only appear in the fourth cause of action for punitive damages, to which the Court sustained the demurrer. Second, even considering this allegation, the fact that Walton was convicted of vehicular manslaughter pursuant to Penal Code section 192(c) does not establish that Walton’s actions constitute malice sufficient to warrant punitive damages. Since the opposition indicates that use of his cell phone was for navigation purposes, this sort of conduct is not unlawful as noted above. Additionally, Penal Code section 192(c)(2) in part provides that vehicular manslaughter can constitute driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. Thus, the fact that Walton was convicted of manslaughter pursuant to Penal Code section 192(c) does not establish that his actions constitute malice such that punitive damages are warranted.

Furthermore, “to establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless. [Citation.] 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.) Thus, even if Walton’s conduct constitutes gross negligence, it is not enough to warrant punitive damages because while Walton’s conduct of checking the navigation on his phone may have distracted him and caused him to strike decedent, these facts do not establish that Walton deliberately failed to avoid injuring decedent. Thus, the Court finds that the allegations in the FAC are insufficient to warrant punitive damages.

Accordingly, the motion to strike the prayer for punitive damages is GRANTED. The burden is on Plaintiffs to make an offer of proof at the hearing on how the pleading can be reasonably amended to warrant punitive damages. (See Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349.)

Moving Party is ordered to give notice.