Judge Anne Hwang, Case Number: 23STCV19129, Date: 2023-11-14 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On August 10, 2023, Plaintiff Enedino Espinoza (“Plaintiff”) filed a complaint against Defendants Target Corporation, BOP Figat7th LLC, Universal Protection Service, LP, and Does 1 to 100. The events revolve around a man who, on November 15, 2022, allegedly entered a Target store at the Figat7th mall and stabbed customers with a knife. Plaintiff in this case alleges he was employed as a security guard by Watermark Security Group Inc., which had a contract with Target Corporation to guard the subject store. (FAC ¶ 1, 6.) Plaintiff alleges he responded to the subject stabbing, encountered the perpetrator, and ultimately rendered deadly force to stop the attack. (Id. ¶ 18.) Plaintiff alleges causes of action for (1) breach of express contract; (2) breach of implied contract; (3) violation of Labor Code section 1102.5; (4) intentional infliction of emotional distress (“IIED”); (5) negligence; (6) assault; (7) violation of Civil Code section 52.1; (8) violation of Business and Professions Code section 17200; and (9) violation of Civil Code section 1770(a) et seq.

On November 14, 2023, the Court overruled BOP Figat7th LLC’s (“Defendant”) demurrer to the IIED and negligence causes of action. The Court sustained the demurrer to the remaining causes of action with leave to amend.

On November 20, 2023, Plaintiff filed his first amended complaint alleging the same nine causes of action. Defendant now demurs to the first, second, third, sixth, seventh, eighth, and ninth cause of action in the FAC. Defendant argues that Plaintiff fails to state facts sufficient to constitute causes of action and that each are uncertain. Defendant also moves to strike portions of the FAC alleging and praying for punitive damages.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Based on the Declaration of Robert Young, it does not appear a meet and confer took place by telephone or in-person. Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)

Here, the FAC alleges: “UNIVERSAL entered into a written service agreement with EYP REALTY, LLC the predecessor to Defendant BROOKFIELD in May of 2014, and written subsequent amendment to service agreement dated January 11, 2021 . . . .” “Defendants’ contract terms stated: “Contractor (UNIVERSAL) represents that it is fully familiar with the Property, the condition of the Property, the surrounding neighborhood, the present occupants and the scope and extent of Contractor's obligations under this Agreement. All Services shall be performed and completed in a good and workmanlike manner. ...goods or materials are to be supplied by Contractor as part of the Services, ...all such goods and materials shall be .... fit for the purposes intended.” (FAC ¶ 25.) “Plaintiff is informed and believes that Defendants TARGET CORPORATION and DOES 1-100, at all times relevant herein, contracted with Watermark Security Group Inc., in writing, to assist with “security” at the front of the Target store. The term of Defendants’ contract was that they agreed the Target store would be maintained in a safe manner, that they provide a safe environment and that they would obey all reasonable and lawful directions, rules and regulations relating to the premises, including that they would not permit the conduct alleged herein. Pursuant to the contract Defendant was to provide both security services and goods related thereto ‘fit for the purposes intended.’ Plaintiff was a beneficiary of these contracts.” (FAC ¶ 26.)

Plaintiff has not sufficiently alleged that he entered into a contract with Defendant. The FAC does not attach a copy of any contract, and since Plaintiff alleges written contracts at issue, the terms must be stated verbatim. (See Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459.) While the FAC quotes some verbatim terms regarding a contract between Brookfield and Universal, the terms do not suggest that Plaintiff is a beneficiary to the contract. Similarly, Plaintiff does not allege verbatim terms of the contract between Target and Watermark that suggest Plaintiff is a third-party beneficiary. Plaintiff asserts that “[w]hether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties' intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.” (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1725.) Unlike in Jones, here the FAC does not allege any verbatim terms of any contract and does not sufficiently allege that Plaintiff is a third-party beneficiary.[1] The FAC still gives no indication of which portion of which contract illuminates the parties’ intent to benefit Plaintiff. Therefore, the demurrer to the first cause of action is sustained.

For the implied breach of contract cause of action, Plaintiff does not allege facts that Defendant’s “conduct and policies implied that Plaintiff’s employment would occur in a safe environment and that Defendants would obey all reasonable and lawful directions, rules and regulations relating to the premises.” (FAC ¶ 32.) Instead, the conduct alleged is that Defendant breached its express contracts. (Id.) Therefore, the demurrer to the second cause of action is sustained.

Labor Code section 1102.5(b) states: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised their rights under subdivision (a), (b), or (c) in any former employment.” (Lab. Code § 1102.5(d).)

Here, the FAC alleges “Plaintiff disclosed illegality which occurred at the premises and Target store, and that Defendants were not providing adequate security for him or others. Plaintiff protested that Defendants’ policies did not result in deterring or even reporting criminal activity such that it would be abated. Plaintiff is informed and believes that Defendants believed that Plaintiff might disclose or report their conduct to official agencies such as the police, or participate in conduct resulting in such disclosure.” (FAC ¶ 37.) “As a result of Plaintiff protesting Defendants’ conduct, Plaintiff was subjected to retaliatory adverse actions by Defendants including being deprived of a safe workplace, being deprived of a legally mandated workplace violence protection program, being denied the ability to abate illegal and violent activity such as detaining potentially violent patrons from entering the Target store, being denied the right to defend himself from criminal activity, being denied the right to report criminal activity, being denied the right to seek a restraining order, being required to permit criminal activity which caused an unsafe work environment for him and others.” (FAC ¶ 38.)

Also, Plaintiff alleges: “At all relevant times herein Plaintiff was employed by a contractor for Defendants, and Defendants employed Plaintiff’s employer. As the employer of a contractor which employed Plaintiff, Defendants are governed by Cal. Labor Code §1102.5(b).” (FAC ¶ 35.)

Defendant argues the FAC fails to state that Defendant was acting on behalf of Plaintiff’s employer, and that it is an unsupported legal conclusion. Plaintiff’s allegation that “[a]s the employer of a contractor which employed Plaintiff, Defendants are governed by Cal. Labor Code §1102.5(b)” is conclusory. Plaintiff offers no facts that would indicate that Defendant was acting on behalf of Plaintiff’s employer, Watermark, for any alleged retaliation against Plaintiff. Therefore, the demurrer to the third cause of action is sustained.

The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

The FAC does not allege facts that Defendant acted with the requisite intent. Here, Plaintiff alleges that the perpetrator lunged at him with a knife. (Id. ¶ 18.) Plaintiff states a conclusion that “Defendants knew of and permitted assault to occur.” (Id. ¶ 54.) This is insufficient. Accordingly, the demurrer is sustained.

Civil Code, section 52.1 (the “Bane Civil Rights Act”) provides a civil remedy for persons whose exercise of constitutional rights has been interfered with by “threats, intimidation, or coercion.” (Civ. Code, § 52.1(a).) Section 52.1 requires “an attempted or completed act of interference with a legal right, accompanied by a form of coercion.” (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.) Bane Act liability occurs when a defendant’s threats, intimidation or coercion interferes or attempts to interfere “with the exercise or enjoyment by any individual of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civil Code § 52.1(a); see City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1082, 1085-86 [plaintiff must allege and prove that defendant interfered with plaintiff’s rights under federal or state law].) “Although initially enacted ‘to stem a tide of hate crimes’ [Citation], ‘a plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion’ [Citation.]” (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1125.)

The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882-883; see also Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [Bane Act was intended to address only egregious interferences with constitutional rights, where the act of interference with a constitutional right must itself be deliberate or spiteful, beyond just any tort, such as negligence].)

Here, the FAC alleges that Defendants permitted violent conduct on its premises, including by the subject assailant, who ran at Plaintiff with a knife. (FAC ¶ 62.) Plaintiff alleges this conduct “was an attempt to intimidate and coerce Plaintiff, and did intimidate and coerce him from doing what he had the right to do which was to protect himself and others from unsafe conditions, to deprive Plaintiff of his rights to be free from unreasonable conduct, from bodily harm, from injury, from injury to his personal relations, from infringement on his rights, from unsafe conditions, from crime, from unfair conduct, to be treated with ordinary care or skill in the management of his person, to be free to warn of imminent crime, to be free from imminent crime, to be free from unfair or deceptive acts, to undertake his duties as a security guard in a reasonable manner, to be supported by services of other qualified and licensed security guards, to be free to take action to stop or prevent a public offense committed or attempted in his presence, to be able to take a weapon away from a suspect person, to make a private person arrest and to obtain a restraining order to prevent crime, to be free from workplace violence, assault and coercion, to be free in his association with others, to be free to report misconduct and participate in abating it, to be free from retaliation.” (FAC ¶ 63.)

The FAC continues to fail to allege facts that Defendant used “threats, intimidation, or coercion” to prevent Plaintiff from exercising his constitutional or statutory rights, as set forth in paragraph 63. Therefore, Plaintiff has not stated sufficient facts to assert a cause of action. The demurrer is sustained.

Eighth Cause of Action for Violation of Business and Professions Code section 17200

“Unfair competition” means “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, § 17200.) “ ‘[S]ection 17200 is written in the disjunctive [and] establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” [Citation.] The three prongs of the law have different thresholds. Under its ‘unlawful’ prong, ‘the UCL borrows violations of other laws ... and makes those unlawful practices actionable under the UCL.’ [Citation.] Thus, a violation of another law is a predicate for stating a cause of action under the UCL's unlawful prong. In a consumer case, determining whether a business practice is ‘unfair’ involves ‘weigh[ing] the utility of the defendant's conduct against the gravity of the harm to the alleged victim.’ [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1133.)

“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619 [sustaining demurrer because the pleading did not identify a particular section of the statutory scheme which was violated and failed to describe with any reasonable particularity the facts supporting violation].)

Here, the FAC alleges: “Defendants acted unfairly and unlawfully when they denied Plaintiff a safe shopping and work environment, denied him the benefit of a legally mandated workplace violence protection program, the ability to abate illegal and violent activity such as detaining potentially violent patrons from entering the Target store, the ability to obtain a restraining order, being denied the right to defend himself from criminal activity, being denied the right to report criminal activity, being required to permit criminal activity which caused an unsafe work environment for him and others. As stated herein, Defendants have interfered with Plaintiff’s rights by permitting dangerous conditions at their premises.” (FAC ¶ 68.)

The FAC continues to fail to identify a specific section of the statutory scheme that was violated and fails to state the facts supporting a violation. Therefore, the demurrer to the eighth cause of action is sustained.

The California Consumers Legal Remedies Act (CLRA), Civil Code section 1750 et seq., protects consumers from a broad range of unfair or deceptive business practices. Under the Act, in order to sue for money damages, a plaintiff must first provide the defendant with notice and a 30-day opportunity to cure the issue. (Civ. Code § 1782 (a).)

The necessary elements of a CLRA cause of action are: (1) a consumer; (2) who suffers any damage; and (3) because of the use or employment by any person of a method, act, or practice declared to be unlawful by Civil Code section 1770. (Civ. Code, §1780 (a); Buckland v. Threshold Ent., Ltd. (2007) 155 Cal.App.4th 798, 809, 811 [“actual reliance is an element of a CLRA claim sounding in fraud”], overruled in other part by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 326-327.) Under the CLRA, a consumer is defined as “an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.” (Civ. Code § 1761 (d).)

Here, the FAC alleges: “Defendants engaged in transactions with Plaintiff intended to result or that resulted in the sale of goods and services to him, and Plaintiff did purchase goods and received services from Defendants TARGET CORPORATION and BROOKFIELD. The services Defendants intended to sell to Plaintiff were safe venues for shopping for consumer goods, parking, entertainment, optometry, gym, ATM, farmers market, dining and goods including but not limited to parking, food and other items.” (FAC ¶ 71.) Plaintiff also alleges that Defendant’s advertised they enforced a code of conduct that would ensure a safe environment for customers. (FAC ¶ 73–74.)

The FAC continues to fail to properly allege that Plaintiff was acting as a consumer for purposes of the CLRA. Accordingly, the demurrer to the ninth cause of action is sustained.

Upon reviewing the amended complaint and Plaintiff’s opposition papers, Plaintiff has not shown that he can successfully amend the FAC. Therefore, the demurrer is sustained without leave to amend.

Defendant also moves to strike Plaintiff’s prayer for, and all references to, punitive damages as well as a sentence in paragraph 4. Because the Court sustains the demurrer, the motion to strike most of the paragraphs is moot except for paragraph 4. Additionally, the motion to strike the fifth prayer for relief is denied since the punitive damages claim for the IIED cause of action remains.[2]

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc. § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Defendant moves to strike the following from paragraph 4: “Defendant BROOKFIELD manages assets worth in excess of 272 Billion dollars, has 500 million square feet of commercial space which it operates and employs more than 30,000 employees.”

Defendant argues this sentence improperly was included to “inflame the passions of the jury in hopes that they will inflate any judgment rendered against Defendant.” (Motion, 5.) Defendant also argues it is irrelevant and improper. Civil Code section 3295 prohibits pre-trial discovery of the financial condition of a defendant without a court order. (Civ. Code § 3295(c).) However, this section does not prohibit the introduction of prima facie evidence to establish a case for punitive damages. (Civ. Code § 3295(b).) Therefore, since Plaintiff’s punitive damages claim remains in the IIED cause of action, the allegation appears relevant and the motion to strike is denied.

The Court sustains Defendant’s demurrer to the first, second, third, sixth, seventh, eighth, and ninth causes of action in the FAC without leave to amend.

Defendant’s motion to strike is denied as to paragraph 4 and the prayer for relief.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

On November 16, 2023, the Court overruled Universal Protection Service, LP’s (“Defendant”) demurrer to the IIED and negligence causes of action. The Court sustained the demurrer to the remaining causes of action with leave to amend.

On November 20, 2023, Plaintiff filed his first amended complaint alleging the same nine causes of action. Defendant now demurs to the second, third, sixth, seventh, and eighth cause of action in the FAC. Defendant argues that Plaintiff fails to state facts sufficient to constitute causes of action and that each are uncertain. Defendant also moves to strike portions of the FAC alleging punitive damages.

Based on the Declaration of Tobias Mark Kane, it does not appear that a meet and confer took place in-person or by telephone. Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)

Defendant’s requests for judicial notice of Plaintiff’s original complaint, the FAC, and the Court’s November 16, 2023 minute order is granted pursuant to Evidence Code section 452(d).

The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391, internal quotations omitted.) “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.”¿ (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993, citations omitted.)¿ Terms of an oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640; Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) In pleading the existence of a contractual relationship, “the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).)” (Otworth v. Southern Pac. Transportation (1985) 166 Cal.App.3d 452, 458-59.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) “[B]oth types of contract are identical in that they require a meeting of minds or an agreement. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established. [Citations omitted.]” (Pacific Bay Recovery, Inc. v. California Physicians' Services, Inc. (2017) 12 Cal.App.5th 200, 215.)

Plaintiff has not sufficiently alleged that he entered into a contract with Defendant. While the FAC quotes some verbatim terms regarding a contract between Brookfield and Universal, the terms do not suggest that Plaintiff is a beneficiary to the contract. Similarly, Plaintiff does not allege verbatim terms of the contract between Target and Watermark that suggest Plaintiff is a third-party beneficiary. Plaintiff asserts that “[w]hether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties' intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.” (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1725.) Unlike in Jones, here the FAC does not allege any verbatim terms of any contract and does not sufficiently allege that Plaintiff is a third-party beneficiary.[3]

Eighth Cause of Action for Violation of Business and Professions Code section 17200

Upon reviewing the amended complaint and Plaintiff’s opposition papers, Plaintiff has not shown that he can successfully amend the FAC. Therefore, the demurrer is sustained without leave to amend.

Defendant also moves to strike paragraphs 40, 57, and 65 of the FAC. However the motion to strike is moot since these paragraphs pertain to causes of actions that were sustained on demurrer.

The Court sustains Defendant’s demurrer to the second, third, sixth, seventh, and eighth causes of action in the FAC without leave to amend.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

On November 20, 2023, Plaintiff filed his first amended complaint alleging the same nine causes of action. Defendant Target Corporation (“Defendant”) now demurs to the first, second, third, fourth, sixth, seventh, eighth, and ninth cause of action in the FAC. Defendant argues that Plaintiff fails to state facts sufficient to constitute causes of action and that each are uncertain. Defendant also moves to strike portions of the FAC alleging and praying for punitive damages.

Based on the Declaration of Jessica Farley, it does not appear a meet and confer took place by telephone or in-person. Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)

As an initial matter, Plaintiff argues that Defendant did not timely respond to the original complaint, and thus was in default. (Opp., 1–2.) Based on the Court’s record, default was not entered against Defendant Target Corporation in this case. (See Notice of Rejection Default, 10/12/23.) Therefore, the Court will hear Defendant’s demurrer.

“A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) “[B]oth types of contract are identical in that they require a meeting of minds or an agreement. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established. [Citations omitted.]” (Pacific Bay Recovery, Inc. v. California Physicians' Services, Inc. (2017) 12 Cal.App.5th 200, 215.)

Here, the FAC alleges: “UNIVERSAL entered into a written service agreement with EYP REALTY, LLC the predecessor to Defendant BROOKFIELD in May of 2014, and written subsequent amendment to service agreement dated January 11, 2021 . . . .” “Defendants’ contract terms stated: “Contractor (UNIVERSAL) represents that it is fully familiar with the Property, the condition of the Property, the surrounding neighborhood, the present occupants and the scope and extent of Contractor's obligations under this Agreement. All Services shall be performed and completed in a good and workmanlike manner. ...goods or materials are to be supplied by Contractor as part of the Services, ...all such goods and materials shall be .... fit for the purposes intended.” (FAC ¶ 25.) “Plaintiff is informed and believes that Defendants TARGET CORPORATION and DOES 1-100, at all times relevant herein, contracted with Watermark Security Group Inc., in writing, to assist with “security” at the front of the Target store. The term of Defendants’ contract was that they agreed the Target store would be maintained in a safe manner, that they provide a safe environment and that they would obey all reasonable and lawful directions, rules and regulations relating to the premises, including that they would not permit the conduct alleged herein. Pursuant to the contract Defendant was to provide both security services and goods related thereto “fit for the purposes intended”. Plaintiff was a beneficiary of these contracts.” (FAC ¶ 26.)

Plaintiff has not sufficiently alleged that he entered into a contract with Defendant. The FAC does not attach a copy of any contract, and since Plaintiff alleges written contracts at issue, the terms must be stated verbatim. (See Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459.) Plaintiff does not allege verbatim terms of the contract between Target and Watermark that suggest Plaintiff is a third-party beneficiary. Plaintiff asserts that “[w]hether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties' intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.” (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1725.) Unlike in Jones, here the FAC does not allege any verbatim terms of any contract and does not sufficiently allege that Plaintiff is a third party beneficiary.[4] The FAC still gives no indication of which portion of which contract illuminates the parties’ intent to benefit Plaintiff. Therefore, the demurrer to the first cause of action is sustained.

Defendant argues the FAC fails to state that Defendant was Plaintiff’s employer. Plaintiff’s allegation that “[a]s the employer of a contractor which employed Plaintiff, Defendants are governed by Cal. Labor Code §1102.5(b)” is conclusory. Plaintiff offers no facts that would indicate that Defendant was acting on behalf of Plaintiff’s employer, Watermark, for any alleged retaliation against Plaintiff. Therefore, the demurrer to the third cause of action is sustained.

The elements for a cause of action for intentional infliction of emotional distress (IIED) 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) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿¿

“The tort calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id.) (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)¿¿

Here, the FAC alleges: “Defendants permitted Plaintiff to be victimized, threatened with unreasonable and un-consented to force. Defendants knew assault was being committed, that further assault was going to be committed, substantially assisted the parties to assault Plaintiff and participated in the misconduct by permitting the conduct to continue giving the parties access to the Plaintiff, who they knew would be at the door and thereby would be having further contact with Plaintiff, with no reprimand or restriction. When Defendants and Does 1 through 100 committed the acts described in this Complaint, they did so deliberately and intentionally to cause Plaintiff to suffer mental anguish, and emotional distress.” Defendants permitted Plaintiff to be victimized, threatened with unreasonable and un-consented to force. Defendants knew assault was being committed, that further assault was going to be committed, substantially assisted the parties to assault Plaintiff and participated in the misconduct by permitting the conduct to continue giving the parties access to the Plaintiff, who they knew would be at the door and thereby would be having further contact with Plaintiff, with no reprimand or restriction. 43. When Defendants and Does 1 through 100 committed the acts described in this Complaint, they did so deliberately and intentionally to cause Plaintiff to suffer mental anguish, and emotional distress. (FAC ¶ 42–43.) “As a proximate consequence of Defendants’ wrongful acts against Plaintiff, he has suffered lost wages, commission, benefits, severe emotional distress, and other general and special damages.” (FAC ¶ 46.)

Here, the FAC alleges facts that Defendant knew Plaintiff would be assaulted and substantially assisted perpetrators in assaulting Plaintiff. Plaintiff has sufficiently alleged outrageous conduct directed at Plaintiff. All facts alleged in the complaint are assumed to be true for purposes of the demurrer. Additionally, the allegations are not so unclear to warrant sustaining the demurrer on the basis of uncertainty. Therefore, the demurrer to the fourth cause of action is overruled.

Here, the FAC alleges: “Defendants knew that the man who had come into the subject premises was violent, and knowing that he was displaying violent behavior on the subject premises, permitted him to not only remain there while he was displaying openly violent behavior, permit him to engage in violent conduct, put into effect a protocol that did not permit Plaintiff or any one else to prohibit the violence from escalating or timely summon aid. Defendants TARGET’s employees observed the man obtain and open the packaging of the knife he later used to attack Plaintiff, and to stab others, permitted him to open and obtain the knife and did nothing to stop him from doing so. While opening the knife he was also displaying violent conduct and making violent statements. Defendants knew of and permitted assault to occur.” (FAC ¶ 54.)

Here, Plaintiff alleges that the perpetrator lunged at him with a knife, which he was permitted to obtain by Defendant’s employees. (Id. ¶ 18.) Defendant does not explain how the acts of its employees does not show the requisite intent. Therefore, the demurrer to the sixth cause of action is overruled.

Eighth Cause of Action for Violation of Business and Professions Code section 17200

The FAC continues to fail to identify a specific section of the statutory scheme that was violated and fails to describe with reasonable particularity the facts supporting a violation. Therefore, the demurrer to the eighth cause of action is sustained.

The FAC continues to fail to properly allege that Plaintiff was acting as a consumer for purposes of the CLRA. Accordingly, the demurrer to the ninth cause of action is sustained.

Upon reviewing the amended complaint and Plaintiff’s opposition papers, Plaintiff has not shown that he can successfully amend the FAC. Therefore, the demurrer is sustained without leave to amend.

Defendant also moves to strike Plaintiff’s prayer for, and all references to, punitive damages in paragraphs: 40, 47, 57, 65, 80. The only paragraphs that survived the demurrer are paragraphs 47 and 57 for IIED and assault.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) 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. 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.) Further, “[t]here 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.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

When seeking damages from an employer, an employer is not liable for punitive damages arising from an employee’s actions pursuant to Civil Code section 3294(a) unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code § 3294(b).) With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Id.)¿

For the IIED and assault causes of action, Plaintiff alleges “Defendant TARGET’s employees observed the man in the TARGET store obtain and open the packaging of the knife he later used to attack Plaintiff, and to stab others, permitted him to open and obtain the knife and did nothing to stop him from doing so.” (FAC ¶ 15.) Therefore, Plaintiff states that Defendant “substantially assisted the parties to assault Plaintiff” and knew that “further assault was going to be committed.” (Id. ¶ 15.) Here, since Defendant is a corporate employer, Plaintiff must allege facts that an officer, director, or managing agent of Defendant had advance knowledge of the employee’s unfitness and employed him with a conscious disregard of the rights or safety of others, or that it ratified the wrongful conduct. Since there are no such facts in the FAC, the motion to strike paragraphs 47 and 57 for punitive damages is granted with leave to amend.[5]

The Court sustains Defendant’s demurrer to the first, second, third, seventh, eighth, and ninth causes of action in the FAC without leave to amend.

The Court overrules Defendant’s demurrer to the fourth and sixth causes of action.

Defendant’s motion to strike is granted as to paragraphs 47 and 57 with leave to amend.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

[1] Moreover, in Jones, the Court affirmed the trial’s court sustaining of a demurrer, finding that it was “apparent from the terms of the insurance policy … that Jones was not an intended beneficiary.” (Jones, supra, 26 Cal.App.4th at 1725.)

[2] Defendant does not move to strike paragraph 47.

[3] Moreover, in Jones, the Court affirmed the trial’s court sustaining of a demurrer, finding that it was “apparent from the terms of the insurance policy … that Jones was not an intended beneficiary.” (Jones, supra, 26 Cal.App.4th at 1725.)

[4] Moreover, in Jones, the Court affirmed the trial’s court sustaining of a demurrer, finding that it was “apparent from the terms of the insurance policy … that Jones was not an intended beneficiary.” (Jones, supra, 26 Cal.App.4th at 1725.)

[5] The motions to strike filed by BOP Figat7th LLC and Allied as to the punitive damages allegations in the original complaint did not seek to strike on the basis that the complaint did not specifically allege an officer, director, or managing agent of each Defendant. Accordingly, the motions to strike were denied as to the IIED count.

DEPARTMENT	32
HEARING DATE	February 15, 2024
CASE NUMBER	23STCV19129
MOTION	Demurrer to First Amended Complaint & Motion to Strike
MOVING PARTY	Defendant BOP Figat7th LLC
OPPOSING PARTY	Plaintiff Enedino Espinoza

DEPARTMENT	32
HEARING DATE	February 15, 2024
CASE NUMBER	23STCV19129
MOTION	Demurrer to First Amended Complaint & Motion to Strike
MOVING PARTY	Defendant Universal Protection Service, LP
OPPOSING PARTY	Plaintiff Enedino Espinoza

DEPARTMENT	32
HEARING DATE	February 15, 2024
CASE NUMBER	23STCV19129
MOTION	Demurrer to First Amended Complaint & Motion to Strike
MOVING PARTY	Defendant Target Corporation
OPPOSING PARTY	Plaintiff Enedino Espinoza