Demurrer & Motion to Strike (Judge Holly J. Fujie)


Case Number: BC618605??? Hearing Date: October 13, 2016??? Dept: 98
MATTHEW EDWARD SHIZOO MERCADO,
Plaintiff,
vs.

SARAI HERNANDEZ, et al.,

Defendants.

CASE NO: BC618605

[TENTATIVE] ORDER RE: DEFENDANT?S DEMURRER AND MOTION TO STRIKE

Dept. 98
1:30 p.m.
October 13, 2016

On April 28, 2016, Plaintiff Matthew Edward Shizoo (?Plaintiff?) filed this action for alleged damages arising out of a May 18, 2014 vehicle collision. Plaintiff alleges causes of action for: 1) motor vehicle negligence; and 2) intentional tort. Defendant Israel Hernandez (erroneously sued as Ismael Hernandez) (?Demurring Defendant?) now demurs to Plaintiff?s second cause of action and moves to strike certain portions of Plaintiff?s Complaint.

When any ground for objection appears on the face of a complaint, a defendant may object by a demurrer to the pleading. Cal. Code of Civ. Proc. ? 430.30(a). Grounds for objection include failure to state facts sufficient to constitute a cause of action and uncertainty. Id., ?? 430.10(e)-(f). A court ?must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff?s contentions nor conclusions of law or fact.? Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. A demurrer may be sustained as to a claim that duplicates another. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501.

Plaintiff alleges that the operator of a Chrysler PT Cruiser, owned by Demurring Defendant, struck the rear of his vehicle, causing his vehicle to skid and overturn. After the collision, the operator of the PT Cruiser fled the scene. When contacted by police, Demurring Defendant stated that the vehicle had been stolen the night before the incident and that it was last in possession of Defendant Sarai Hernandez, his sister. Plaintiff alleges that the police concluded that the vehicle was not truly stolen. It is not clear which Defendant, if any, was operating the vehicle at the time of the collision. Plaintiff alleges that Defendants intentionally fled the scene, in violation of Vehicle Code section 20001 and made false statements to the police to avoid responsibility. Plaintiff alleges that he has suffered grave bodily injury as a result of Defendants? intentional conduct.

Demurring Defendant interprets Plaintiff?s second cause of action as one for intentional infliction of emotional distress (?IIED?) and argues that it fails to state sufficient facts. Demurring Defendant argues that a claim under Vehicle Code section 20001 is actionable in negligence and points out that Plaintiff has not alleged severe emotional distress.

In his Opposition, Plaintiff asserts that he is not making a claim for IIED. Plaintiff argues that he has sufficiently pled a cause of action for intentional tort, because he alleged intentional conduct on the part of Defendants which resulted in harm to him in the form of inconvenience, stress, and anxiety.

Section 20001 of the Vehicle Code provides that the driver of a vehicle involved in an accident resulting in injury to a person shall immediately stop the vehicle and provide his or her contact information, as well as render to any person injured reasonable assistance. The failure to stop and render aid constitutes negligence as a matter of law. Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679.

Plaintiff cites to Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 to support the argument that his intentional tort cause of action is sufficiently pled. The Corenbaum court held that a civil action for violation of Vehicle Code section 20001 is limited to damages caused by fleeing the scene of the accident. Id., at 1340. As Demurring Defendant points out, the causes of action alleged in Corenbaum sounded in negligence, not intentional tort.

In light of the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute any intentional tort recognized under California Law. Demurring Defendant?s Demurrer is SUSTAINED with twenty days leave to amend. The Motion to Strike is therefore MOOT.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 13th day of October, 2016

Hon. Holly J. Fujie
Judge of the Superior Court