Opinion
No. C 06-03300 JSW.
February 15, 2007
ORDER (1) GRANTING IN PART AND DENYING IN PART INTENSIVE AIR, INC.'S MOTION TO DISMISS AND (2) GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE
Now before the Court is the motion to dismiss and the motion to strike the prayers for punitive damages filed by Intensive Air, Inc. The Court finds that these matters are appropriate for disposition without oral argument and the matters are deemed submitted. See Civ. L.R. 7-1(b). Accordingly, the hearing set for February 16, 2007 is VACATED. Having carefully considered the parties' arguments and relevant legal authority, the Court hereby grants in part and denies in part Intensive Air's motions.
BACKGROUND
This action arises out of the transport of Reuben W. Hills III ("Mr. Hills") from Verde Valley Medical Center in Cottonwood, Arizona to Saint Mary's Medical Center in San Francisco, California. Plaintiff Ingrid von Mangoldt Hills ("Plaintiff") is Mr. Hills' widow. When he was still alive and staying in Sedona, Arizona, Mr. Hills suffered from a severe asthma attack, resulting acute respiratory failure. (Compl., ¶ 11.) When his conditioned stabilized, Mrs. Hills contracted with Intensive Air to transport Mr. Hills from the medical center in Arizona to the one in San Francisco. (Id. at ¶ 14.) Plaintiff alleges that Intensive Air then subcontracted with Medical Air to transport Mr. Hills. (Id. at p. 3.) The Court will address additional specific facts as required in the analysis.
Intensive Air now moves to dismiss several, but not all, of Plaintiff's claims for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Intensive Air also moves to strike Plaintiff's prayers for punitive damages pursuant to Federal Rule of Civil Procedure 12(f).
ANALYSIS
A. Applicable Legal Standards.
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. A motion to dismiss should not be granted unless it appears beyond a doubt that a plaintiff can show no set of facts supporting his or her claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). The complaint is construed in the light most favorable to the non-moving party and all material allegations in the complaint are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). The court, however is not required to accept legal conclusions cast in the form of factual allegations, if those conclusions cannot reasonably be drawn from the facts alleged. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Federal Rule of Civil Procedure 12(f) provides that a court may "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Immaterial matter "is that which has no essential or important relationship to the claim for relief or the defenses being pleaded." California Dept. of Toxic Substance Control v. ALCO Pacific, Inc., 217 F. Supp. 2d 1028, 1032 (C.D. Cal. 2002) (internal citations and quotations omitted). Impertinent material "consists of statements that do not pertain, or are not necessary to the issues in question." Id. Motions to strike are regarded with disfavor because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice. Colaprico v. Sun Microsystems Inc., 758 F. Supp 1335, 1339 (N.D. Cal. 1991). The possibility that issues will be unnecessarily complicated or that superfluous pleadings will cause the trier of fact to draw unwarranted inferences at trial is the type of prejudice that is sufficient to support the granting of a motion to strike. Cal. Dept. of Toxic Substances Control, 217 F. Supp. at 1028.
B. Intensive Air's Motions.
Intensive Air moves to dismiss the following five of Plaintiff's claims: elder abuse, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, and battery. Intensive Air also moves to strike the paragraphs in Plaintiff's complaint in which she seeks punitive damages. Plaintiff does not oppose the motion to dismiss as to her claims for assault and battery. (Opp. at 1.) Accordingly, the Court grants Intensive Air's motion as to those two claims.
1. Plaintiff's Elder Abuse Claim.
Plaintiff alleges a claim for elder abuse pursuant to California Welfare and Institutions Code § 15657. "The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section 15600 et seq. (hereinafter the Elder Abuse Act) are statutory. . . ." Intrieri v. Superior Court, 117 Cal. App. 4th 72, 82 (2004). To state a claim of elder abuse, a plaintiff must allege facts showing the defendant (1) subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression, or fraud in the commission of the abuse. See Welf. Inst. Code §§ 15610.63, 15610.57, 15610.30, 15657.
Intensive Air argues that because, as Plaintiff alleges, Intensive Air contracted with Medical Air to transport Ms. Hills, it was Medical Air and not Intensive Air, who had custody or control over Mr. Hills. It thus follows that Medical Air, or its employees, committed of the alleged acts of neglect or abuse. However, the Court cannot conclude as a matter of law at this procedural stage that Intensive Air is not liable for any of the acts committed by Medical Air or its employees. Therefore, the Court denies Intensive Air's motion as to the elder abuse claim.
2. Plaintiff's Claim for Intentional Infliction of Emotional Distress.
Plaintiff alleges a claim for intentional infliction of emotional distress against Intensive Air. The elements of a claim for intentional infliction of emotional distress are: (1) outrageous conduct by the defendant with intention to cause or reckless disregard of the probability of causing emotional distress; (2) severe emotional suffering; and (3) actual and proximate causation of the emotional distress. See, e.g. Cochran v. Cochran, 64 Cal. App. 4th 488, 494 (1998).
Intensive Air moves to dismiss the intentional infliction claim on several grounds, including that Plaintiff failed to allege that Intensive Air's alleged acts were intended to cause emotional distress. A plaintiff who brings a claim of intentional infliction of emotional distress based on witnessing the injury of another must overcome a "substantial hurdle." Coon v. Joseph, 192 Cal. App. 3d 1269, 1272-73 (1987) (citing Ochoa v. Superior Court, 39 Cal. 3d 159 (1985)). To state a claim for intentional infliction of emotional distress, a plaintiff must allege conduct "which is especially calculated to cause, and does cause, mental distress of a very serious kind." Ochoa, 39 Cal. 3d at 165 n. 5 (emphasis in original); see also Christensen v. Superior Court, 54 Cal. 3d 868, 904 (1992) (noting that "[t]he requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury."). Moreover, when a plaintiff seeks to state such a claim based on witnessing conduct directed toward a third person, "recovery — to the extent it has been allowed at all — `has been limited to the most extreme cases of violent attack, where there is some especial likelihood of fright or shock.'" Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120, 130 (2002) (quoting Christensen, 54 Cal. 3d at 905).
In Ochoa, parents of a minor who died while confined in a juvenile facility filed a lawsuit. They alleged that they suffered extreme mental and emotional distress when they visited their son after he fell ill with pneumonia. They observed him feeling severely ill and being in extreme pain. Id. at 163. The mother in particular saw her son screaming, complaining of excruciating pain, vomiting, convulsing, hallucinating, and coughing up blood. Id. at 163-64. The parents repeatedly spoke with authorities at the juvenile facility in an attempt to get him proper medical attention. The mother pleaded to be able to take her son to her private doctor but was not permitted. Id. Despite the fact that the authorities at the juvenile detention center caused the parents "untold distress," the Supreme Court found that the "defendants acted negligently rather than with the purpose of causing the plaintiffs emotional distress." Id. at 165 n. 5.
Here, Plaintiff is seeking to state a claim for intentional infliction of emotional distress based on her witnessing the alleged treatment of her now deceased husband. Plaintiff has not alleged any facts from which it could be inferred that Intensive Air or Medical Air acted with the purpose of causing Plaintiff emotional distress. More importantly, Plaintiffs' alleged acts do not involve a violent attack. Accordingly, the Court finds that Plaintiff has not and cannot state a claim for intentional infliction of emotional distress and thus, grants Intensive Air's motion as to this claim.
3. Plaintiff's Claim for Negligent Infliction of Emotional Distress.
Plaintiff also alleges a claim for negligent infliction of emotional distress. "[T]he negligent causing of emotional distress is not an independent tort but the tort of negligence." Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989) (quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 838, p. 195 (emphasis omitted)). Accordingly, Plaintiff must establish the traditional elements of a tort claim, namely that (1) Intensive Air owed her a duty of care, (2) it breached that duty, and (3) caused her damages. Id. Intensive Air argues that Plaintiff failed to that it owed any duty to Plaintiff or that such duty was breached.
With respect to claims for negligent infliction of emotional distress, California courts have distinguished between "bystander" and "direct victim" cases. Plaintiff is proceeding under a theory of bystander liability. The California Supreme Court has explained that "`bystander' cases . . . address `the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.'" Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (quoting Christiansen v. Superior Court, 54 Cal. 3d 868, 884 (1991)). Liability in bystander cases "is premised upon a defendant's violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another." Id. at 1073.
To avoid potentially limitless cases, California restricts the class of potential plaintiffs in bystander cases to a person who: "(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." Id. (citing Thing v. La Chusa, 48 Cal. 3d 644, 647 (1989)). Plaintiff has alleged facts demonstrating she meets all three restrictions. Intensive Air does not argue or demonstrate otherwise. Accordingly, the Court denies Intensive Air's motion to dismiss as to Plaintiff's claim for negligent infliction of emotional distress.
4. Punitive Damages.
Intensive Air also moves to strike paragraphs 35, 41, 48, 53, 60, 67 of Plaintiff's complaint. Because the Court is granting its motion to dismiss Plaintiff's claims for assault, battery, and intentional infliction of emotional distress, Intensive Air's motion to strike as to paragraphs 48, 60, and 67 is now moot. Moreover, Plaintiff does not oppose Intensive Air's motion to strike as to paragraph 53, and thus, the Court grants Intensive Air's motion to strike as to that paragraph.
Plaintiff states that she does not oppose the motion to dismiss as to the assault and battery claims and the motion to strike as to paragraphs 53 and 60. Paragraphs 53 and 60 are the prayers for punitive damages pursuant to her claims for negligent infliction of emotional distress and assault, respectively. It is not clear whether Plaintiff's non-opposition with respect to paragraph 53 is a typographical error and whether she meant to agree to strike the requests for punitive damages under her claims for assault and battery instead. Nevertheless, any mistake would be harmless because a plaintiff cannot recover punitive damages based on negligent conduct. See Grieves v. Superior Ct., 157 Cal. App. 3d 159, 166 (1984) (directing trial court to grant motion to strike punitive damages where plaintiff alleged only negligence and no intentional conduct).
Intensive Air argues that Plaintiff's allegations all arise from and relate to the rendering of professional services, and thus, the requirements of California Code of Civil Procedure section 425.13(a) ("section 425.13(a)") apply. Section 425.13(a) provides in pertinent part:
In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading. . . .
However, "section 425.13's limitations on damages arising out of professional negligence . . . were not meant to burden those who pursue the cause of abused elderly persons . . . under the Elder Abuse Act." Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 783 (2004).
The California Supreme Court distinguished claims for neglect under the Elder Abuse Act from professional negligence: "As used in the [Elder Abuse] Act, neglect refers not to the substandard performance of medical services but, rather, to the `failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.'" Id. at 783 (quoting Delany v. Baker, 20 Cal. 4th 23, 34 (1999)). The court further explained:
Elder abuse as defined in the [Elder Abuse] Act, even when committed by a health care provider, is not an injury that is "directly related" to the provider's professional services. . . . As a failure to fulfill custodial duties owed by a custodian happens also to be a health care provider, such abuse is at most incidentally related to the provider's health care services. That is, claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be heath care providers.Id. at 786. Thus, the Supreme Court held that the procedural prerequisites for punitive damages in an action arising out of the professional negligence of a health care provider pursuant to section 425.13 did not apply to a request for punitive damages pursuant to a claim alleging elder abuse. Id. at 788-90.
Here, Plaintiff alleges, inter alia, that when Mr. Hill was in the custody and care of Intensive Air and Medical Air, they left him unprotected from the elements. He was left on a gurney on the airport tarmac for approximately thirty minutes exposed to the sun when it was over 100 degrees Fahrenheit. (Compl., ¶ 18.) As a result, Mr. Hills became badly sunburned and suffered from being exposed to the extreme heat. (Id.) Plaintiff thus alleges a "failure of those responsible for attending to the basic needs and comforts" of Mr. Hill "to carry out their custodial obligations." See Covenant Care, 32 Cal. 4th at 783. Therefore, the Court finds that section 425.13 does not apply to Plaintiffs' elder abuse claim and wrongful death claim to the extent it is premised on the same allegations. Accordingly, the Court denies Intensive Air's motion to strike as to paragraphs 35 and 41.
CONCLUSION
For the foregoing reasons, Intensive Air's motion to dismiss and motion to strike are granted in part and denied in part as follows:
(1) The motion to dismiss is GRANTED as to Plaintiff's claims for intentional infliction of emotional distress, assault, and battery;
(2) The motion to dismiss is DENIED as to Plaintiff's claims for negligent of emotional distress and elder abuse.
(3) The motion to strike paragraphs 48, 60, and 67 is DENIED as moot;
(4) The motion strike as to paragraph 53 is GRANTED; and
(5) The motion to strike paragraphs 35 and 41 is DENIED.