Judge: Cherol J. Nellon, Case: 19STCV31873, Date: 2023-04-24 Tentative Ruling
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Case Number: 19STCV31873 Hearing Date: April 24, 2023 Dept: 28
Defendant Becerra’s Demurrer to the Third through Sixth and Eighth
through Ninth Cause of Action in the Fifth Amended Complaint and Motion to
Strike Portions of the Fifth Amended Complaint
Having considered the moving papers, oppositions, and replies,
the Court rules as follows.
BACKGROUND
On September 6, 2019, Plaintiff Sunnie H. Han
("Plaintiff') filed this action against Defendants John Nutt (“Nutt”),
City of Pasadena Police Department (“City”), and Matthew Morgan (“Morgan”) for
general negligence, intentional tort, assault and battery, false arrest and
false imprisonment, civil rights violations under Section 1793, Civil Rights
Act of 1871, and elder abuse.
On May 20, 2021, Plaintiff filed the First
Amended Complaint against Defendants for assault and battery, negligence, and
violation of civil rights. On June 10, 2021, Plaintiff filed the Second Amended
Complaint against Defendants for assault and battery, negligence, violation of
civil rights, false imprisonment and false arrest, and intimidation of witness.
On September 14, 2021, Plaintiff filed the
Third Amended Complaint against Defendants for assault and battery, negligence,
false imprisonment/false arrest without a warrant in violation of civil rights,
defamation, conspiracy to violate civil rights, malicious prosecution, and
elder abuse. Plaintiff also amended the TAC to include Defendant Gilbert
Becerra (“Becerra”).
On October 18, 2021, the City and Morgan filed
their answer.
On August 5, 2022, Plaintiff filed the Fourth
Amended Complaint for assault and battery and elder abuse, negligence,
violation of civil rights, defamation, conspiracy to violate civil rights,
malicious prosecution and elder abuse. Plaintiff later amended the complaint to
include Defendant East West Bank (“EWB”).
On December 5, 2022, Plaintiff filed the Fifth
Amended Complaint (“5AC”) for assault and battery and elder abuse, negligent
failure to make reasonable and necessary factual investigation of the false
charges of trespass and battery, false imprisonment/false arrest without a
warrant in violation of civil rights and obstruction of justice, defamation/slander,
conspiracy to violate civil rights/deprivation of rights, abuse of process and
conspiracy to misuse the judicial process, elder abuse, assault and battery and
elder abuse, and negligent failure to make reasonable and necessary factual
investigation of the false charges of trespass and battery.
On December 27,
2022, this action was removed to federal court.
On February 14,
2023, this action was remanded back to state court.
On March 23, 2023, Defendant Becerra filed a demurrer as
to the Third through Sixth and Eighth through Ninth Causes of Action in the 5AC.
Defendant Becerra also concurrently filed a motion to strike portions of the
5AC. On April 11, 2023, Plaintiff opposed both motions. On April 17, 2023,
Becerra replied to both oppositions from Plaintiff.
Trial is set for September 18, 2023.
PARTY’S REQUESTS
Defendant Becerra seeks for the
Court to sustain the demurrer without leave to amend as to the Third, Fourth,
Fifth, Sixth, Eighth, and Ninth Causes of Action in the 5AC on the grounds that
they fail to state a claim and that they are uncertain. Becerra also seeks to
strike certain allegations from the 5AC and the requests for punitive damages.
LEGAL STANDARD
Meet and Confer
Before filing a
demurrer or motion to strike, the demurring and moving party is required to
meet and confer with the party who filed the pleading sought to be stricken or
demurred to, in person or telephonically, for the purposes of determining
whether an agreement can be reached through a filing of an amended pleading
that would resolve the objections to be raised in the demurrer and motion to
strike. (See Code Civ. Proc., §§ 430.41, 435.5.)
Demurrer
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. (Taylor v. City of Los Angeles
Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a
demurrer proceeding, the defects must be apparent on the face of the pleading
or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone
and not the evidence or other extrinsic matters. Therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902,
905.) “The only issue involved in a demurrer hearing is whether the
complaint, as it stands, unconnected with extraneous matters, states a cause of
action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)
The ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are assumed to be
true.”])
Motion to Strike
Any party, within the time
allowed to respond to a pleading may serve and file a notice of motion to
strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd.
(b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon
a motion or at any time in its discretion and upon terms it deems proper: (1)
strike out any irrelevant, false, or improper matter inserted in any pleading;
or (2) strike out all or any part of any pleading not drawn or filed in
conformity with the laws of California, a court rule, or an order of the
court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz
(1954) 42 Cal.2d 767, 782.)
In order to state a prima
facie claim for punitive damages, a complaint must set forth the elements as
stated in the general punitive damage statute, Civil Code section 3294. (College.
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These
statutory elements include allegations that the defendant has been guilty of
oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).)
“Malice is defined in the statute as conduct intended by
the defendant to cause injury to the plaintiff or despicable conduct which is carried
on by the defendant with a willful and conscious disregard of the rights or
safety of others.” (College Hospital, Inc., supra, 8
Cal.4th at p. 725 [examining Civ. Code, § 3294, subd. (c)(1)].) “A
conscious disregard of the safety of others may constitute malice within the
meaning of section 3294 of the Civil Code. In order to justify an award of
punitive damages on this basis, the plaintiff must establish that the defendant
was aware of the probable dangerous consequences of his conduct, and that he
willfully and deliberately failed to avoid those consequences.” (Taylor
v. Superior Court (1979) 24 Cal.3d 890, 895-896.)
“As amended to include [despicable], the statute 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., supra, 8 Cal.4th at p. 725.) 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.)
“In order to survive a
motion to strike an allegation of punitive damages, the ultimate facts showing
an entitlement to such relief must be pled by a plaintiff.
[Citations.] In passing on the correctness of a ruling on a motion to
strike, judges read allegations of a pleading subject to a motion to strike as
a whole, all parts in their context, and assume their truth.
[Citations.] In ruling on a motion to strike, courts do not read
allegations in isolation. [Citation.]” (Clauson v. Superior
Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an
intentional tort was committed is not sufficient to warrant an award of
punitive damages. [Citation.] Not only must there be circumstances
of oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim. [Citation.]” (Grieves v. Superior Court
(1984) 157 Cal.App.3d 159, 166 [footnote omitted].)
“[T]he imposition of punitive damages upon a corporation is
based upon its own fault. It is not imposed vicariously by virtue of the
fault of others.” (City Products Corp. v. Globe Indemnity Co.
(1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do
not have minds capable of recklessness, wickedness, or intent to injure or
deceive. An award of punitive damages against a corporation therefore
must rest on the malice of the corporation’s employees. But the law does
not impute every employee’s malice to the corporation. Instead, the
punitive damages statute requires proof of malice among corporate
leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz
v. Home Base (2000) 83 Cal.App.4th 160, 167 [citation omitted].) As
to ratification, “[a] corporation cannot confirm and accept that which it does
not actually know about.’” (Ibid. [citing College Hospital,
Inc., supra, 8 Cal.4th at p. 726 [for ratification sufficient to justify punitive damages
against corporation, there must be proof that officers, directors, or managing
agents had actual knowledge of the malicious conduct and its outrageous
character]].)
PRELIMINARY ISSUES
Paragraph
94 of the 5AC, which falls within the Seventh Cause of Action, contains
allegations against Becerra. Defendant Becerra did not demur to the Seventh Cause
of Action, nor did he move to strike paragraph 94 of the 5AC. However,
Plaintiff concedes in her opposition that the Seventh Cause of Action of the
5AC does not apply to Defendant Becerra. (Opp., 2:13-14.) Accordingly, the
Court need not consider any issues vis-à-vis Becerra and the Seventh Cause of
Action in ruling on the Demurrer and Motion to Strike.
REQUEST FOR JUDICIAL NOTICE
The Court grants Defendant Becerra’s requests for judicial
notice in their entirety.
DISCUSSION
Meet and Confer
The Court finds Defendant has filed code-compliant meet and
confer declarations. (See Brody Declarations, ¶¶ 6-13.)
Summary
Plaintiff alleges that
Nutt, a security officer EastWest Bank in Pasadena, instructed security guards
to not allow Plaintiff in the building after Plaintiff confronted Nutt the
previous day about eavesdropping on a private conversation. A subject premises
employee informed Nutt that Plaintiff was a regular customer, but Nutt still
denied Plaintiff entry; he then told lobby security officers to call the police
on Plaintiff for trespassing. The 5AC alleges that Plaintiff exited the
building and was then attacked by Nutt, from behind, resulting in injuries.
Nutt informed Plaintiff she was under arrest for trespassing and placed her in
handcuffs. The City’s SWAT team and Morgan then arrived, placing Plaintiff
under arrest for trespass and battery on Nutt. Plaintiff alleges that Morgan
made false statements about Plaintiff’s actions and arrested Plaintiff without
probable cause. Morgan then filed false charges against Plaintiff and subjected
her to false imprisonment and arrest without probable cause.
Demurrer – Third Cause of Action – False Imprisonment/False
Arrest without a Warrant in Violation of Civil Rights and Obstruction of
Justice
The elements of a claim for false
imprisonment are: “(1)
the nonconsensual, intentional confinement of a person, (2) without lawful
privilege, and (3) for an appreciable period of time, however brief’ ”].) False
imprisonment involves coercion, by force, threat, or otherwise.” (Jon Davler, Inc. v. Arch Ins. Co. (2014) 229 Cal. App.
4th 1025, 1034.) "False
arrest and false imprisonment are the same tort. False arrest is a way of
committing false imprisonment." (Cox v. Griffin (2019) 34
Cal.App.5th 440, 446 n. 6.)
Becerra
contends that the 5AC only alleges Nutt and Morgan arrested and imprisoned Plaintiff,
and that there are no allegations that Becerra had any interactions with
Plaintiff or law enforcement. Becerra further contends that the remaining
against him are conclusory and without factual support. Becerra also notes that
the allegations for this cause of action attempt to combine civil rights
violations under the Unruh Civil Rights Act in a confusing manner such that it
renders it uncertain.
The Court
agrees with Becerra on these arguments. The 5AC is devoid of factual
allegations that Becerra had any direct involvement with Plaintiff’s arrest.
The Court also agrees that the 5AC improperly lumps different claims together
under the umbrella of false imprisonment, which renders it uncertain.
Plaintiff’s opposition has not substantively refuted any of these arguments,
but instead largely makes conclusory allegations and regurgitates allegations
from the 5AC. To the extent Plaintiff relies on the Court’s overruling Nutt’s
demurrer to the First, Second, and Seventh Causes of Action from the Fourth Amended
Complaint, the Court should also be able to apply its ruling to the Third Cause
of Action, which the Court sustained without leave to amend.
Accordingly,
the Court will sustain the Demurrer as to this cause of action without leave to
amend.
Demurrer – Fourth Cause of Action – Defamation/Slander
“Defamation is an invasion of the
interest in reputation. The tort involves the intentional publication of a
statement of fact that is false, unprivileged, and has a natural tendency to
injure or which causes special damage.” (Smith v. Maldonado (1999) 72
Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)
Becerra contends that Plaintiff
has failed to allege Becerra making any sort of false statement or that any
such statement was published. The Court agrees with Becerra. The 5AC contains
no allegations of Becerra making a false statement and that such false
statement was published. Plaintiff has not substantively disputed this
argument.
Therefore, the Court will sustain
the Demurrer as to this cause of action without leave to amend.
Demurrer – Fifth Cause of Action – Conspiracy to Violate
Civil Rights/Deprivation of Rights
A cause of action for violation of
civil rights under 42 U.S.C. section 1983 does not apply to a private citizen
unless the state is sufficiently involved in the private conduct that the
private parties may be considered state actors. (Robbins v. Hamburger Home
for Girls (1995) 32 Cal.App.4th 671, 683.)
Becerra
contends that Plaintiff dismissed this cause of action when it was pending
before the federal court on February 14, 2022. Indeed, Plaintiff did dismiss
this cause of action at that time. (Request for Judicial Notice, Ex. 3.) Even
if it had not been dismissed, it would still be subject to demurrer because the
5AC lacks any allegations to show that it was involved in Becerra’s alleged
conduct here. Plaintiff has not substantively disputed these arguments either.
Accordingly,
the Court will sustain the Demurrer to the Fifth Cause of Action without leave
to amend.
Demurrer – Sixth Cause of Action – Abuse of Process and
Conspiracy to Misuse the Judicial Process
The elements of a cause of action
for abuse of process are: (1) the defendant entertained an ulterior motive in
using the process; and (2) committed a willful act in a wrongful manner. (State
Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40.)
Becerra contends that the 5AC fails
to allege Becerra having initiated, instituted, or participated in any legal
process against Han, whether criminal or civil, and fails to allege that
Becerra had an ulterior or improper motive. Becerra also notes that these
allegations are substantially identical to those Plaintiff pled previously for
a malicious prosecution claim that was sustained without leave to amend, and
that this is only an attempt to recast those allegations under a different
legal theory. The Court agrees and Plaintiff has not disputed these arguments
either.
Therefore, the Court will sustain
the Demurrer to the Sixth Cause of Action without leave to amend.
Demurrer – Eighth Cause of Action – Assault and Battery and
Elder Abuse
“’Abuse
of an elder
or a dependent adult’ is defined as ‘physical abuse, neglect, financial abuse,
abandonment, isolation, abduction, or other treatment with resulting physical
harm or pain or mental suffering,’ or ‘deprivation by a care custodian of goods
or services that are necessary to avoid physical harm or mental suffering.’”
((1) [§ 80] In General., 5 Witkin, Summary 11th Torts § 80 (2022) [citing
Welf.C. 15610.07].)
“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.)
The elements of a cause of action for
battery are: “(1) defendant touched
plaintiff, or caused plaintiff to be touched,
with the intent to harm or
offend plaintiff;
(2) plaintiff
did not consent to the touching;
(3) plaintiff was harmed or offended by defendant's conduct; and (4) a
reasonable person in plaintiff's position would have been offended by the
touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)
Becerra contends that the 5AC contains no
allegations that Han was in Becerra’s care or custody, or that Becerra had any
interactions with Plaintiff. Becerra further contends that the allegations for
this cause of action contain bare legal conclusions and lack any substance, and
that the allegations here fail to show any relevance to elder abuse
allegations. Becerra also reiterates that the 5AC is devoid of allegations that
Becerra was even physically present at the time of the alleged incident.
Plaintiff has not substantively disputed these arguments.
The Court
agrees with Becerra that the 5AC contains no allegations of Becerra ever having
been in Plaintiff’s physical proximity during the incident, which undermines
any claims for assault or battery or elder abuse based on physical abuse. The 5AC
also contains no allegations of Becerra ever having been in Plaintiff’s care or
custody, and the allegations for this cause of action have no relevance to any
of these causes of action. (5AC, ¶¶ 100-102.)
The Court
further finds that Plaintiff’s combination of a claim for assault, battery, and
elder abuse into one cause of action is improper and renders it subject to
demurrer for uncertainty. Additionally, the Court notes that the Court already
sustained the demurrer of City and Morgan to Plaintiff’s claims for the First
and Second causes of action in the Fourth Amended Complaint, which Plaintiff
states in her opposition that she has repleaded them here as the Eighth and
Ninth Causes of Action in the 5AC against City and Morgan. As such, it is
completely improper for Plaintiff to have realleged those causes of action
against City and Morgan.
Therefore,
the Court will sustain the Demurrer to this cause of action without leave to
amend.
Demurrer – Ninth Cause of Action – Negligent Failure to
Make Reasonable and Necessary Factual Investigation of the False Charges of
Trespass and Battery
The elements of a claim for negligence
are the existence of a legal duty of care, breach, causation, and damages. (Thomas
v. Stenberg (2012) 206 Cal.App.4th 654, 662.)
Becerra contends that it appears
Plaintiff is attempting to combine multiple causes of action into a single
cause of action, but that essentially she appears to be claiming negligence. On
that basis, Becerra contends that Plaintiff has failed to allege the existence
of a duty that Becerra purportedly owed to Plaintiff and that she has failed to
allege the breach of any such duty. Becerra argues that Plaintiff again has
made conclusory allegations that do not satisfy the pleading requirements here.
The Court agrees and Plaintiff has not substantively disputed these arguments.
The Court also finds that this cause
of action is subject to demurrer for uncertainty, as it is unclear what cause
of action Plaintiff is attempting to plead here. If Plaintiff was attempting to
plead negligence, then this cause of action fails for the reasons noted above.
Additionally, it is wholly improper for Plaintiff to reallege causes of action
that the Court previously sustained against City and Morgan.
Accordingly, the Court sustains the
Demurrer to this cause of action without leave to amend.
Motion to Strike
In light of the Demurrer being
sustained to each of the foregoing causes of action without leave to amend, the
motion to strike is rendered moot. Accordingly, the Court will deny the motion
to strike as moot.
CONCLUSION
Defendant Becerra’s Demurrer is SUSTAINED
without leave to amend.
The Motion to Strike is DENIED as moot.
Defendant Becerra is ordered to give notice of this ruling and file
proof of service of same within five days.
The parties are
directed to the header of this tentative ruling for further instructions.