Judge Audra Mori, Case 22STCV06763 2022-07-27 Tentative Ruling

Plaintiffs Junning Fu (“Junning”) and Nadia Fu (“Nadia”) (collectively, “Plaintiffs”) filed this action against Defendants Tiger Tinting Studio (“Tiger Tinting”) and Dong Li aka Tiger Lee (“Li”) (collectively, “Defendants”) for damages relating to an alleged physical attack by Li, the owner and manager of Tiger Tinting, on Junning in the presence of his spouse, Nadia. Plaintiffs allege that after Defendants installed window tint on Plaintiffs’ vehicle, and Plaintiffs informed Defendants their work damaged Plaintiffs’ vehicle, Li grabbed Junning in a chokehold and threw Junning to the floor causing Junning to hit his head on the concrete floor. (Compl. ¶¶ 9-11, 15.) The complaint alleges causes of action for (1) negligence, (2) battery, (3) intentional infliction of emotional distress (“IIED”), and (4) negligent infliction of emotional distress (“NEID”). The complaint includes a prayer for punitive damages as to the second and third causes of action.

Defendants now demur to the complaint arguing that each cause of action fails to state sufficient facts to constitute a claim against Defendants. Plaintiffs oppose the demurrer. Additionally, Defendants move to strike the prayer for punitive damages.

Defendants argue that each cause of action is devoid of sufficient vicarious liability allegations such that Tiger Tinting can in any way be responsible for the alleged conduct. Further, Defendants argue that Li did not engage in the alleged conduct, namely grabbing Junning in a chokehold, and that if Junning fell to the ground, it was due to his own actions.

In opposition, Plaintiffs contend that each cause of action is properly pled, and that Defendants’ claims that Li did not engage in the conduct alleged in the complaint are improper on demurrer.

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 demurring party is to file a declaration regarding the meet and confer efforts. (Id. § 430.41(a)(3).)

In this case, Defendants did not file a meet and confer declaration as required by CCP § 430.41(a). Nonetheless, Defendants provide in the moving papers that defense counsel sent a meet and confer letter to Plaintiff’s counsel and attached a copy of the letter. (Demurrer Exh. A.) Plaintiffs further seemingly acknowledge meeting and conferring with Defendants regarding the issues raised in Defendants’ letter. (See Opp. at p.5:13-14.) Therefore, the court exercises its discretion to rule on the demurrer. However, Defendants’ counsel is put on notice that failure to comply with all statutory requirements in the future may result in the court continuing or taking matters off calendar.

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) There is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Further, “[t]he rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)

20. Defendants, and each of them, owed Plaintiffs a duty not to take action which would harm them. Defendants breached this duty when they grabbed Mr. Fu by the neck, threw him to the ground, resulting in serious injuries to his neck and head.

21. As a direct and proximate cause of the breach of duty by the Defendants, and each of them, Plaintiffs have suffered serious compensatory and general damages, all in an amount according to proof at trial, but in no event less than $250,000.

(Compl. ¶¶ 20-21.) The claim further provides that it is alleging the preceding 18 paragraphs as though set forth fully therein. (Id. at ¶ 19.)

Admittedly, the practice of incorporation 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.) Nevertheless, the complaint alleges that after Plaintiffs returned to Defendants’ shop to inform them that Plaintiffs’ vehicle’s window had been damaged, Lil told Plaintiffs to leave the property, and after Plaintiffs asked about their vehicle’s window, Li grabbed Junning in a frontal chokehold. (Compl. ¶¶ 9, 12-13, 15.) Li then used great force to throw Junning to the ground, which caused Junning to hit his head. (Id. ¶ 15.)

While the complaint’s allegations are stated in broad, general terms, they are sufficient to allege a cause of action for negligence against Li for the incident as to Junning. (See Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 Id. [“The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.”].)

Furthermore, while Defendants argue the complaint is devoid of any facts lying in vicarious liability as to hold Tiger Tinting responsible, the complaint alleges that Li was the owner and manager of Tiger Tinting, and that the incident happened at Defendants’ place of business regarding work done on Plaintiffs’ vehicle. (Compl. ¶¶ 4, 8.) Defendants’ contentions that the allegations are untrue, repeated throughout their demurrer, are not properly considered for the purposes of a demurrer. The court must accept all allegations as true.

Consequently, the complaint sufficiently states a cause of action for negligence by Junning against Defendants. However, to the extent the complaint is also asserting a claim for negligence by Nadia against Defendants, the complaint fails to state a claim against Defendants. The negligence claim pleads that Li, as the owner and manager of Tiger Tinting, attacked Junning while Nadia was watching; there are no further allegations concerning a duty, breach, causation, and damages as to Nadia. Furthermore, the fourth cause of action concerns a claim for NEID by Nadia against Defendants for the same conduct at issue here. Therefore, the negligence claim here by Nadia is merely duplicative of the NEID claim and adds nothing to the complaint. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; accord. Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1165 [“A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.”].)

Based on the foregoing, the demurrer to the first cause of action for negligence by Plaintiff Junning against Defendants is overruled. The demurrer is sustained to the negligence claim as to Plaintiff Nadia.

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen, supra, 227 Cal.App.4th at 890; see also Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495 [contact is unlawful if unconsented to].)

Here, the complaint that Li “offensively and harmfully touch Mr. Fu when he grabbed Mr. Fu by the neck and threw him to the ground,” which caused Junning injury. (Compl. ¶ 23.) However, the complaint does not contain any allegations as to whether Junning consented to the touching. Therefore, on its face, the complaint does not properly plead a claim for battery against Li.

d. 3^rd C/A for Intentional Infliction of Emotional Distress by Plaintiffs against Defendants

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].) Moreover, a defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].)

Additionally, an employer may be vicariously liable for an employee’s intentional torts. (Lisa M, 12 Cal.4th at 296.) “[A]n 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.) “The rule is based on the policy that losses caused by the torts of employees, which as a practical matter are certain to occur in the conduct of the employer's enterprise, should be placed on the enterprise as a cost of doing business.” (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291.) Concerning holding an employer liable for an employee’s actions, “[t]he respondeat superior doctrine is to be given a broad application…” (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434.)

Here, the complaint alleges concerning the IIED claim: “Defendants, and each of them, intentionally engaged in extreme and outrageous conduct which was intended to result in severe emotional distress to the Plaintiffs. In particular, Mr. Li, as owner and manager of Tiger Tint Studios, viciously and violently attacked Mr. Fu, grabbing by the neck in a frontal chokehold and throwing him to the concrete floor of the Tiger Tint Studios shop. (Compl. ¶¶ 27.) Again, the complaint further pleads that the attack by Li on Junning was carried out on Nadia, who saw the entire melee. (Id. at ¶ 18.) Plaintiffs argue these allegations are sufficient to state a claim for IIED against Defendants because it is extreme and outrageous conduct for a store owner or manager to physically attack and seriously injure a customer, and it is reasonable to infer that such behavior causes serious emotional distress to the victims and witnesses.

Nevertheless, even assuming for the purposes of argument that outrageous conduct is alleged, concerning Plaintiffs’ claim they suffered emotional distress as a result of the incident, Plaintiffs merely alleges that Defendants’ actions “did result in severe emotional distress to the Plaintiffs, and each of them, taking the form of fear, anxiety, sleeplessness, pain, anger and loss of earning capacity…” (Id. ¶ 28.) This is insufficient to meet the high bar to establish severe emotional distress, as there are insufficient factual allegations to explain why each of these results ensued. (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress]; see also Hughes (2009) 46 Cal.4th at 1051.) This alleged distress does not rise to the level of “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes (2009) 46 Cal.4th at 1051.)

Accordingly, the complaint fails to state a claim for IIED against Defendants. The demurrer is sustained as to the third cause of action for IIED.

e. 4^th C/A Negligent Infliction of Emotional Distress by Nadia against Defendants

The elements of a cause of action for the negligent infliction of emotional distress based on the bystander theory are: (1) the plaintiff 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 serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668; see also Ra v. Sup. Ct. (2007) 154 Cal.Ap^p.4th 142, 148-49, 64 Cal.Rptr.3d 539 [bystanders must be closely related to the victim, have been present at the scene and contemporaneously aware of injuring, and have suffered serious emotional distress]; Smith v. Pust (1993) 19 Cal.Ap^p.4th 263, 273, 23 Cal.Rptr.2d 364 [plaintiff must be direct victim or a bystander who witnessed to the injury].)

Moreover, plaintiff bystanders must prove “serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances … [S]erious mental distress may be found where a reasonable person normally constituted would be unable to adequately cope with the mental distress engendered by the circumstances of the case.” (Thing v. La Chusa, 48 Cal.3d at 667-8, n. 12.)

Here, the complaint alleges that Nadia is Junning’s wife, and that Nadia saw the entire attack by Li on her husband. (Compl. ¶¶ 32-33.) Further, the complaint alleges that Nadia “has suffered severe emotional distress manifesting itself in sleeplessness, fear, anxiety, depression, and anger.” (Id. at ¶ 33.) However, there are again insufficient factual allegations showing Nadia suffered serious distress as required to state a claim for bystander emotional distress. (Thing v. La Chusa, 48 Cal.3d at 667-8, n. 12; see also Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1377 [evidence of losing sleep, upset stomach and anxiety did not constitute severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure].)

Accordingly, the complaint fails to state a cause of action for NIED. The demurrer is sustained as to fourth cause of action.

The burden is on Plaintiffs to show in what manner they 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, Plaintiffs requests leave to amend the complaint. Based on Plaintiffs’ arguments concerning the alleged incident, the court finds there is a reasonable possibility Plaintiffs can amend the pleadings to cure the above noted defects.

Defendants’ demurrer is sustained as to the first cause of action to the extent it is asserted by Nadia, and to the second, third and fourth causes of action with 20 days leave to amend.

Defendants also move to strike the prayer for punitive damages requested as to the second and third causes of action. However, in light of the ruling above sustaining Defendants’ demurrer to the complaint, the court finds the motion to strike moot at this time.

Hon. Audra Mori

Judge of the Superior Court