Judge: Cherol J. Nellon, Case: 21STCV37230, Date: 2023-04-04 Tentative Ruling
Case Number: 21STCV37230 Hearing Date: April 4, 2023 Dept: 28
Defendant Pipkin Detective Agency,
Inc.’s Demurrer with Motion to Strike
Having
considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On
October 8, 2021, Plaintiffs Leonel Mateo Pascual (“Leonel”) and Pascual Mateo
Pascual (“Pascual”) filed this action against Defendants Raymond G. Guillermo
(“Guillermo”) and Los Angeles Private Detectives (“LAPD”) for assault and
battery, intentional infliction of emotional distress and negligent infliction
of emotional distress. Plaintiffs later amended the complaint to include
Defendant Pipkin Detective Agency, Inc. (“PDA”).
On
January 11, 2022, Guillermo filed an answer.
On
July 8, 2022, PDA filed an answer. PDA later filed a Cross-Complaint against
Cross-Defendants ROES 1-100 for indemnity, equitable contribution and
declaratory relief.
On
January 18, 2023, Plaintiffs filed the FAC, adding in causes of action for
negligent hiring, supervision, training and retention of employee, negligence
and negligence per se. Plaintiffs later amended the complaint to include
Defendant Ho Sai Gai Farms, Inc. (“HSG”).
On
January 24, 2023, Guillermo filed an answer. On March 27, 2023, HSG filed an
answer.
On
February 22, 2023, PDA filed a Demurrer with Motion to Strike to be heard on April
4, 2023. On March 21, 2023, Plaintiffs filed an opposition.
Trial
is currently scheduled for September 13, 2023.
PARTY’S
REQUESTS
PDA
requests that the Court sustain the demurrer as to assault and battery,
intentional infliction of emotional distress and negligent hiring, supervision,
training and retention of employees due to lack of required specificity.
PDA also requests the Court strike all
mentions of malice or reckless indifference that would give rise to punitive
damages, statements made regarding intentional infliction of emotional
distress, the cause of action for negligent hiring, retention training and
supervision, the cause of action for negligence, and the request for punitive
damages.
Plaintiffs
request the Court overrule the demurrer and deny the motion to strike.
LEGAL STANDARD
CCP
§ 430.10 states: “The party against whom a complaint or cross-complaint has
been filed may object, by demurrer or answer as provided in Section 430.30, to
the pleading on any one or more of the following grounds: (a) The court has no
jurisdiction of the subject of the cause of action alleged in the pleading; (b)
The person who filed the pleading does not have the legal capacity to sue; (c)
There is another action pending between the same parties on the same cause of
action; (d) There is a defect or misjoinder of parties; (e) The pleading does
not state facts sufficient to constitute a cause of action; (f) The pleading is
uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible;
and (g) In an action founded upon a contract, it cannot be ascertained from the
pleading whether the contract is written, is oral, or is implied by conduct.”
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 by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984)
153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Id.) 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, 147
Cal.App.4th at 747.)
“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
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
essential 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.)
“A
cause of action for intentional infliction of emotional distress exists when
there is ‘(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) actual and proximate causation of the emotional distress by
the defendant’s outrageous conduct.’ 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’s conduct must be ‘intended to inflict
injury or engaged in with the realization that injury will result.’” (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
“Negligence
liability will be imposed on an employer if it ‘knew or should have known that
hiring the employee created a particular risk or hazard and that particular
harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th
1133, 1139.)
Any party, within the time allowed
to response to a pleading, may serve and file a notice of motion to strike the
whole or any part of that pleading. (CCP § 435(b).) The Court may, upon a
motion made pursuant to Section 435, or at any time in its discretion, and upon
terms it deems proper: (a) Strike out any irrelevant, false or improper matter
asserted in any pleading; (b) Strike out all or any part of any pleading not
drawn or filed in conformity with the laws of this state, a court rule, or an
order of the Court." (CCP § 436.) The Court's authority to strike improper
pleadings includes the power to strike those pleadings that are "not filed
in conformity with its prior ruling." (Janis v. California State
Lottery Com (1998) 68 Cal.App.4th 824, 829.)
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. (Coll.
Hosp., 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 (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." (Coll. Hosp., Inc.,
supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)
“[A]n employer may be liable for an
employee’s act where the employer . . . subsequently ratified an originally
unauthorized tort. [Citations.] The failure to discharge an employee who has
committed misconduct may be evidence of ratification. [Citation.] The theory of
ratification is generally applied where an employer fails to investigate or
respond to charges that an employee committed an intentional tort, such as
assault or battery. [Citations.] Whether an employer has ratified an employee’s
conduct is generally a factual question. [Citation.]” (Ventura v. ABM
Industries Inc. (2012) 212 Cal.App.4th 258, 272.)
DISCUSSION
Summary
Plaintiffs allege that they were attacked,
assaulted, handcuffed and berated by agents and employee of Defendants. Plaintiffs
alleges they arrived on the subject property, with the owner’s permission, to
begin their work shift. Once they were outside, they saw four males in uniform
arrive in vehicles, who accused Plaintiffs of stealing. Despite numerous
explanations that they had permission to be on the property, Plaintiffs were
handcuffed by Guillermo. Guillermo allegedly slammed Leonel’s head against his
vehicle at least five times, and Pascual’s body against the vehicle several
times. He subsequently pulled out a handgun and pointed it at both Plaintiffs;
handcuffs were only removed after the arrival of the Kern County Sheriffs.
PDA allegedly hired, trained and supervised
LAPD and Guillermo to provide security to the subject property, who were acting
as agents and employees of PDA at the time of the incident.
Assault and Battery
A cause of action as to assault requires 1)
intent or threat to cause harm or offensive conduct, 2) Plaintiff’s reasonable
belief they were immediately going to be touched in a harmful or offensive
manner, 3) lack of consent to the contact, 4) damages and 5) proximate cause. A
cause of action for battery requires 1) intentionally harmful or offensive
conduct that 2) Plaintiff did not consent to that 3) resulted in damages and
that a 4) reasonable person would have been offended by.
PDA argues that there are no factual
allegations that speak to intention from PDA’s agents to place Plaintiffs in
apprehension of or actual harm. The Court disagrees; the complaint provides
multiple facts that indicate an intent or threat to cause harm. Page 16 ¶ 49
states “[PDA’s agents] threatened such contact by berating, yelling,
approaching and verbally and physically threatening, handcuffing them and
physically slamm[ing] them...” When writing a complaint, a party need not
provide an exact look into a defendant’s mental state. The party must simply
provide factual allegations that could be reasonable read to provide a basis
for that cause of action and that would provide sufficient factual information
to allow a party to begin defending against such allegations. Here, Plaintiffs
have not just vaguely stated that they were threatened, but specifically
discuss the verbal and physical actions taken against them that indicated
intent to harmfully or offensively touch Plaintiffs.
PDA also states that there are no factual allegations
that Plaintiffs were in fear of harmful or offensive contact. The Court agrees
here with PDA. In reviewing the complaint, there are no factual allegations
made that indicate Plaintiffs themselves were in fear of harm. There are
factual allegations that Defendants intended to cause fear, and that a
reasonable person would be offended by the conduct, but there are no actual
allegations that Plaintiffs themselves were afraid.
Given that this is two causes of action for
battery and assault combined into a single cause of action, the Court sustains
the demurrer as to this cause of action, for failing to sufficiently plead the
elements for assault. This should be split into two separate causes of action,
with each action sufficiently pled.
Intentional Infliction of Emotional Distress
PDA argues that Plaintiffs both fail to meet
the extreme and outrageous standard, citing case law such as Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590., that holds that
liability does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. PDA provides no other specific case
law that would support finding a lack of extreme and outrageous conduct in this
case.
The Court finds that this cause of action is
sufficiently pled. Plaintiffs allege far more than “mere insults, indignities,
threats, annoyance, or petty oppressions.” They instead argue that PDA came
into their place of business, to which they had explicit permission to be in,
and threatened, berated, detained, handcuffed and then physically attacked
them. Plaintiffs note that, while handcuffed, Guillermo allegedly slammed
Leonel’s head against his vehicle at least five times, and Pascual’s body
against the vehicle several times. He subsequently pulled out a handgun and
pointed it at both Plaintiffs. A reasonable person could certainly find this as
beyond the bounds of usually tolerated in a civilized community by a private
detective against parties who are allegedly at their workplace with proper
authorization. The Court overrules the demurrer as to this cause of action.
Negligent Hiring, Supervision, Training and
Retention
PDA alleges that Plaintiffs failed to allege any
facts, separate and distinct from this incident, that the employe knew or
should have known that hiring the employee created a particular risk. In
reviewing the complaint, the Court agrees—there are only general allegations
made against PDA’s employees, insufficient to meet the California pleading
standard. Plaintiffs provide no prior incidents or interactions that would put
PDA on notice as to their agents' risk of harm. There is only a general
allegation, lacking factual allegations in support, that agents were
“unlicensed, unfit, and/or incompetent.” Similarly, training and supervision
allegations are also vague without factual basis. The Court sustains the
demurrer as to this cause of action.
Motion to Strike
PDA
requests the Court strike all mentions of malice or reckless indifference that
would give rise to punitive damages. All mentions made in the first cause of
action are moot, as the cause of action is subject to demurrer. All mentions made
in the second cause of action will not be struck; Plaintiff has provided an
adequate basis for a finding of punitive damages as to the IIED claim. Punitive damages may only be awarded
upon a showing of malice, oppression or fraud. “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." (Coll. Hosp.,
Inc., supra, 8 Cal. 4th at 725). Punitive damages stemming from vicarious
liability may be awarded if the employee is shown to have acted with the
requisite behavior to potentially allow for punitive damages. Here, there is an
allegation of malice, as one of PDA’s employees allegedly intended to cause
injury to Plaintiffs. The Court will not strike any mentions of malice or
requests for punitive damages stemming from the second cause of action and will
also not strike the request for punitive damages in the prayer.
Similarly,
the Court will not strike the more generalized statements made in the cause of
action for intentional infliction of emotional distress; although not factual
allegation on their own, they provide structure to factual allegations made
against PDA. Read in the context of the complaint, the Court does not find a
basis to strike.
The
Court sustained the demurrer as to the cause of action for negligent hiring,
retention, training and supervision; the motion to strike as to this request is
moot.
PDA
requests the Court strike the cause of action for negligence, as negligence was
not originally pled in the initial complaint. PDA argues that the motion to
strike only granted leave to amend as to punitive damages. This is incorrect.
In granting leave to amend, the Court intended to grant Plaintiffs leave to
amend the complaint in total, so long as the causes of action and allegations
stem from the same central incident as originally pled. Plaintiffs’ cause of
action for negligence stems from the same set of facts and thus was properly
pled in the amended complaint. The Court denies the motion as to this request.
CONCLUSION
Defendant Pipkin Detective Agency, Inc.’s Demurrer is SUSTAINED, in PART,
with 30 days leave to amend. The demurrer is sustained ONLY as to the causes of
action for assault and battery, as well as negligent hiring, training,
supervision and retention.
Defendant Pipkin Detective Agency, Inc.’s Motion to Strike is DENIED, as to
punitive damages, the second cause of action and the fifth cause of action. It
is MOOT as to all requests referencing the first and fourth causes of action.
Moving
party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this
ruling with the Court within five days.
The parties are directed to the header of this
tentative ruling for further instructions.