entitled to their return in light of Plaintiffs’ cancellation of the sale. Thus, Plaintiffs’ arguments against this cause of action lack merit and the Demurrer to the fourth cause of action is OVERRULED. Moving party to give notice.

103 Geer vs. Sims

25-01508856 1. Demurrer to Complaint 2. Motion to Strike Portions of Complaint 3. Case Management Conference Defendant Mark Husum Sims (“Defendant”) demurs to the Complaint of plaintiffs Hannah Louise Geer and Melanie Danielle Marquis (“Plaintiffs”) on the ground that the intentional tort cause of action fails to allege sufficient facts. Defendant further moves to strike the claim for punitive damages.

This action arises out of a June 7, 2024 vehicle collision that occurred while Plaintiffs were stopped at a red light. Plaintiffs allege that Defendant, while under the influence of alcohol, rear ended their vehicle. (Compl. at p. 6, ¶ 2.) Plaintiffs allege that the collision was of significant force and resulted in major damages to Plaintiffs and Plaintiffs’ vehicle, which Defendant knew or reasonably should have known would cause injuries to Plaintiffs. (Ibid.) After the impact, Defendant immediately intentionally fled the scene of the incident, despite personally observing the serious injuries to Plaintiffs. (Id. at p. 6, ¶ 3.)

Intentional Tort “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 as modified (Sept. 23, 1998).) Here, Plaintiffs contend that the cause of action pled under the heading “intentional tort” states a claim for intentional infliction of emotional distress. Defendants contend that the cause of action has not been sufficiently pled because Plaintiffs have not pled outrageous conduct or an intent to cause Plaintiffs severe emotional distress.

The elements of a cause of action for 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.’ ” ' ” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Typically, conduct qualifies as “outrageous” when it is so “ ‘ “extreme as to exceed all bounds of that usually tolerated in a civilized community.” ’ ” (Ibid.) “In order to avoid a demurrer, the plaintiff must allege with ‘great[] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Vasquez v.

Cited authorities

Extracting citations from the ruling text…

Verify against the source PDF — LLM extraction may miss or mis-normalize citations.

Looking for case law or statutes not cited here? Search published authorities

Ask about this ruling

Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”

Answers reference only this ruling's text. Not legal advice — always verify against the source PDF.

Find similar rulings

Other rulings by Gassia Apkarian Judge Gassia Apkarian dossier Other Demurrer in ORANGE All ORANGE County rulings Other Personal Injury cases

Related rulings

by semantic similarity

Source

Print-friendly view

Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “There is no bright line standard for judging outrageous conduct and ‘ “ ‘. . . its generality hazards a case-bycase 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.]” [Citation.]’ Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Cochran v.

Cochran (1998) 65 Cal.App.4th 488, 494.)

Here, Plaintiffs do not merely allege that Defendant was driving under the influence. Plaintiffs alleges that Defendant also immediately fled the scene even after observing the serious damages caused to Plaintiffs’ vehicle and serious injury to Plaintiffs. These additional allegations of facts go beyond what courts have found to be not sufficiently outrageous. (See, e.g. Cochran, 65 Cal.App.4th at p. 497 [holding vague voicemail left by the respondent, which appellants viewed as a threat but which lacked immediacy and clear meaning, insufficient]; Ankeny v.

Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 535- 536 [holding allegations of personal verbal insults, being passed over for promotion, and being assigned inappropriate job tasks insufficient]; Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 992-993 [holding allegations of screaming, yelling, and threatening gestures insufficient].)

Defendant’s argument that the cause of action fails because no intent to cause emotional distress is alleged lacks merit. Intent is not required where it is alleged that the defendant acted with reckless disregard of the probability of causing emotional distress. The facts support the element of reckless disregard here. Lastly, Defendant’s argument that there are no allegations of Plaintiffs suffering severe emotional distress also fails. Plaintiffs allege they sustained great emotional disturbance and shock to their nervous systems, all of which caused and continue to cause severe mental and emotional pain and suffering. Thus, the Demurrer to the intentional infliction of emotional distress cause of action is OVERRULED.

Defendant moves to strike the claim for punitive damages on the ground that the Complaint alleges only conclusory allegations regarding malice, oppression, or fraud and, further, there are no facts alleged that show that the conduct that caused the injury or damage (driving under the influence) was done with malice. Defendant contends that allegations that he fled the scene after the impact are irrelevant because the injury had already occurred. “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 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. [Citations.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

To support exemplary damages, the complaint must allege facts of defendant’s oppression, fraud, or malice, as required by Civil Code section 3294. (Civil Code, § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) “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. (Civil Code, § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294(c)(2).) “ ‘Despicable conduct’ is defined [in jury instructions] 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.’ 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.)

In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, a bicyclist was struck by an automobile driven by Mardian and filed suit seeking, among other things, punitive damages. The trial court struck the claim for punitive damages and the court of appeal reversed. The court of appeal noted that the “[p]etitioners alleged a good deal more than Mardian’s decision to drive and his driving in an intoxicated condition. They alleged that ‘with knowledge that probable serious injury would result to persons in the area,’ Mardian ran a stop sign, and was zigzagging in and out of traffic at a speed in excess of 65 miles per hour in a 35 mile per hour zone at the entrance to a popular recreation area on a Sunday afternoon when many pedestrians and bicyclists were in the immediate vicinity.

They also alleged that immediately after the accident Mardian and his passenger falsely reported to the police that the passenger was driving rather than Mardian. If these allegations were proved at trial, the factfinder could reasonably find that Mardian acted with ‘malice’—with a conscious disregard of safety and the probable injury of others as a result of his conduct.” (Id. at pp. 88-89.)

The Dawes court was careful to note that it did “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. The risk of injury to others from Mardian’s conduct under the circumstances alleged was probable.” (Id. at 89.)

Here, Plaintiffs have only alleged that Defendant was under the influence of alcohol and intentionally and willfully fled the scene without identifying themselves to Plaintiffs. (Compl. at p. 7, ¶ 2.) The allegation of driving under the influence is the type of conduct Dawes expressed was not the same as the type of conduct that supported a potential punitive damage award. Further, there are no factual allegations that would support a finding that Defendant’s decision to leave the scene created a probable risk of injury to Plaintiffs, such that a trier of fact could find that Defendant’s act constituted a willful and conscious disregard to the safety of Plaintiffs. Accordingly, the Motion to Strike is GRANTED with 20 days leave to amend. Moving Party to give notice

104 Bonakdar vs. Bonakdar

25-01527577 1. Demurrer to Complaint Defendant Zinab Bonakdar aka Sofia Bonakdar (“Defendant”) demurs to Plaintiff Zahra Bonakdar’s (“Plaintiff”) Complaint. The Complaint contains one cause of action for declaratory relief. Plaintiff failed to oppose the demurrer.

Based on the non-opposition, the Court may “deem plaintiff[] to have abandoned the issues” or “claims” addressed in the Demurrer. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) The non-opposition is consider an implied concession to the merit of Defendants’ arguments presented in the Demurrers and Motions to Strike. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566, as modified (Jan. 25, 2000) [“By failing to argue the contrary, plaintiffs concede this issue.”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [holding that