Judge Audra Mori, Case 21STCV28268 2022-12-06 Tentative Ruling

Plaintiff Patricia Cipriano (“Plaintiff”) filed this action against defendants Texas Loosey's Chili Parlor & Saloon, River Diego Investment Corp., and Grey Wolf Properties, LLC for injuries Plaintiff allegedly sustained from defendants’ employee while at a restaurant. The operative Second Amended Complaint (“SAC”) alleges that while Plaintiff was at the restaurant, a fight or altercation erupted when without warning an employee of defendants’ violently grabbed and lifted Plaintiff from behind. (SAC ¶ 13.) The SAC asserts causes of action for (1) assault, (2) battery, (3) negligence, and (4) premises liability.

Defendant Grey Wolf Properties, LLC (“Defendant”) now demurs to the first cause of action for assault of the SAC arguing that it fails to state sufficient facts to constitute a claim against it. Plaintiff opposes the demurrer, and Defendant filed a reply.

Defendant contends that the first cause of action fails to plead facts alleging that Plaintiff was put in fear of personal harm. Defendant contends that because Plaintiff was allegedly grabbed from behind without warning, she did not have an opportunity to form a reasonable belief that she was about to be touched in a harmful or offensive manner. Defendant argues that Plaintiff’s conclusory and general allegations are not supported by the facts pled in the SAC.

In opposition, Plaintiff asserts that she was a patron at Defendant’s restaurant when a fight broke out, and in the course of the fight, Defendant’s employee violently grabbed and lifted Plaintiff. Plaintiff contends that when read as a whole, the SAC sufficiently pleads a cause of action for assault because it alleges Plaintiff was placed in apprehension of harmful and offensive contact with her person in the course of the fight that broke out at Defendant’s property. Plaintiff contends that the fact she was grabbed and lifted from behind does not preclude apprehension of harmful contact up until the point that she was actually grabbed.

In reply, Defendant argues that the SAC fails to allege sufficient facts to state a claim against Defendant because the conduct allegedly giving rise to the claim did not come from Defendant or its employees. Defendant argues that the SAC merely alleges Plaintiff was placed in apprehension by an altercation that broke out at the restaurant that involved unknown persons.

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). (CCP §§ 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.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Hernandez Decl. ¶¶ 3-6.)

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Kiseskey v. Carpenters’ Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 [“The tort of assault is complete when the anticipation of harm occurs.”].) Further, “an employer is responsible for the torts of his employee if these torts are committed within the scope of employment.” (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 462.)

11. On or about August 2, 2019, PLAINTIFF was a patron of the restaurant located at 22252 Palos Verdes Blvd, Torrance, CA 90503 (the “PREMISES”).

13. On or about August 2, 2019, while PLAINTIFF was legally on the PREMISES, an altercation and/or fight erupted on the PREMISES, and in the course thereof, PLAINTIFF was seriously and permanently injured when without warning and unidentified employee and/or agent of DEFENDANTS TEXAS LOOSEY’S CHILI PARLOR & SALOON; RIVER DIEGO INVESTMENT CORP.; GREY WOLF PROPERTIES, LLC, and/or DOE DEFENDANTS 1-50 violently grabbed and lifted PLAINTIFF from behind.

19. In doing the acts alleged above, DEFENDANTS intended to place PLAINTIFF in apprehension of a harmful and offensive contact with her person. PLAINTIFF in fact was placed in great apprehension of a harmful and offensive contact with her person. PLAINTIFF did not consent to any of the acts of DEFENDANTS alleged above.

The first cause of action further incorporates all prior allegations in the SAC into the assault claim. (SAC ¶ 18.) The practice of incorporation of all or most prior paragraphs in a complaint is disfavored, as this type of pleading “tends to cause ambiguity and creates redundancy." (Ulrich v. State Farm (2003) 109 Cal.App.4th 598, 605.) In reading the SAC as a whole, the only factual allegations against Defendant, and the allegations Plaintiff relies on in arguing that the SAC sufficiently states a claim for assault against Defendant, are that Plaintiff was legally at Defendant’s restaurant when a fight broke out, and one of Defendant’s employees violently grabbed and lifted Plaintiff from behind without warning. (SAC ¶¶ 11, 13.) While Plaintiff alleges in a conclusory manner that Defendant’s alleged acts were intended to place Plaintiff in apprehension of harmful or offensive contact with her person, (SAC ¶ 19), the only alleged conduct involving Defendant is that its employee grabbed and lifted Plaintiff from behind without warning. Because the SAC alleges on its face that this act was done from behind and without warning, it is unclear what conduct, if any, by Defendant caused Plaintiff to reasonably believe she was about to be touched in a harmful or offensive manner.

To the extent that Plaintiff seemingly contends she was placed in apprehension of harmful or offensive contact with her person when the fight broke out, there are no allegations showing that Defendant or its employees were involved in the fight. Further, there are no allegations showing that the people involved in the fight or altercation acted with the intent to cause harmful or offensive contact with Plaintiff’s person. Therefore, the SAC fails to allege any conduct by Defendant or its employees that caused Plaintiff to reasonably believe she was about to be touched in a harmful or offensive manner.

Defendant’s demurrer to the SAC is sustained as to the first cause of action for assault against Defendant.

The burden is on Plaintiff to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiff requests leave to amend the SAC to set forth additional facts supporting the assault cause of action. The Court finds there is a reasonable possibility Plaintiff can amend the SAC to state a claim for assault against Defendant. Plaintiff should allege all facts known to her as the Court will not be inclined to sustain another demurrer to the assault claim with leave to amend.

Defendant’s demurrer to the SAC is sustained to the first cause of action for assault with 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court