Judge: Curtis A. Kin, Case: 22STCV10349, Date: 2022-09-22 Tentative Ruling
Case Number: 22STCV10349 Hearing Date: September 22, 2022 Dept: 72
DEMURRERS (2) AND MOTIONS TO STRIKE (2)
Date: 9/22/22
(9:30 AM)
Case: Margarita Barriga et al. v.
Haruko Minakawa et al. (22STCV10349)
Demurrer to Complaint from Defendant Thomas Okabe dba Alta
Properties is OVERRULED.
Demurrer to Complaint from Defendant Haruko Minakawa, as
Trustee of the Minakawa Trust is OVERRULED.
Motion to Strike Portions to Complaint by Defendant Thomas
Okabe dba Alta Properties is DENIED.
Motion to Strike Portions to Complaint by Defendant Haruko
Minakawa, as Trustee of the Minakawa Trust is DENIED.
I.
DEMURRER TO COMPLAINT FROM DEFENDANT THOMAS
OKABE DBA ALTA PROPERTIES
A.
Misjoinder of Parties
Defendant Thomas Okabe dba Alta Properties demurs to the
entire Complaint on the ground that plaintiffs were improperly joined in the
action. (CCP § 430.10(d) [allowing for demurrer for misjoinder of parties].)
Okabe argues that the “phone-smashing” incident with plaintiff Margarita
Barriga (“Barriga”) allegedly occurring on March 26, 2021 and the February 5,
2022 incident with plaintiffs Veronica Sedeno Lara (“Sedeno”) and Juan
Maldonado Gutierrez (“Maldonado”), where defendant Orlando Pat allegedly threw Maldonado
on the ground and struck Sedeno in the head with a piece of construction lumber,
are two distinct encounters that do not arise out of the same series of
transactions or occurrences.
CCP § 378 states: “(a) All persons may join in one action as
plaintiffs if: [¶] (1) They assert any right to relief jointly, severally, or
in the alternative, in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question of law
or fact common to all these persons will arise in the action; or [¶] (2) They
have a claim, right, or interest adverse to the defendant in the property or
controversy which is the subject of the action.”
With respect to Okabe, plaintiffs allege that property
management company Alta Properties (“Alta”), which Okabe maintains is his fictitious
business name in this demurrer, knew about Pat’s aggressive and harassing
behavior through a February 24, 2021 letter that Barriga sent to Alta, but
defendants, including Okabe, nonetheless maintained Pat’s employment as
resident manager. (Compl. ¶ 6.) After Pat confronted Barriga about her letter
to Alta on March 26, 2021, resulting in the destruction of Barriga’s phone,
Barriga complained to Okabe, who dismissed Barriga’s complaints, stating: “He’s
my guy. He can do what he wants.” (Compl. ¶¶ 7, 8.) Despite knowledge of Pat’s
violent behavior, Okabe did nothing to stop Pat. (Compl. ¶ 10.) As Pat was
still employed as resident manager, on February 5, 2022, Pat initiated a
dispute over parking with Maldonado and Sedeno, resulting in Pat pushing
Maldonado on the ground and striking Sedeno in the head. (Compl. ¶ 11.)
Although the encounters with Barriga and Maldonado/Sedeno
were on separate occasions, the common thread between the two encounters is
that Okabe allegedly knew that Pat had a propensity for violence but maintained
his employment, thereby enabling both encounters to occur. The two encounters
thus arise out of Okabe’s failure to remove Pat from his position as resident
manager and thus are subject to common questions of law and fact.
For the foregoing reasons, the demurrer to the Complaint
based on misjoinder of parties is OVERRULED.
B.
Fourth Cause of Action: Battery
“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, citing CACI
1300.)
Defendant Okabe argues that, because he was not alleged to
have directly committed battery against plaintiffs, plaintiffs must allege how he
was vicariously liable for Pat’s conduct. Okabe allegedly employed Pat. (Compl.
¶ 3.) Under the doctrine of respondeat superior, “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.)
“[W]here the question is one of vicarious liability, the
inquiry should be whether the risk was one ‘that may fairly be regarded as
typical of or broadly incidental’ to the enterprise undertaken by the
employer.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608,
619.) Okabe argues that Pat’s threats or use of violence were not inherent in
the landlord-tenant relationship and therefore were not foreseeable. “[A]n
outgrowth of the employment relationship and a risk which may fairly be
considered as typical of, or incidental to, the employment” includes
“occasional emotional flareups and propensity for violence.” (Id. at
623.) “[A]n employee's physical eruption, stemming from his interaction with a
customer” is a foreseeable risk of employment. (Flores v. AutoZone West,
Inc. (2008) 161 Cal.App.4th 373, 380.)
Here, Pat allegedly was charged with enforcing defendants’
parking rules at the subject property. (Compl. ¶ 4.) In connection with that parking
enforcement responsibility, Pat allegedly revoked Barriga’s parking privileges
in retaliation for complaining to Alta and then wrenched Barriga’s phone from
her hand. (Compl. ¶ 7.) Pat also attacked Maldonado and Sedeno because Pat
believed that Maldonado was parked improperly. (Compl. ¶ 11.) Because the two
encounters were connected to Pat’s enforcement of defendants’ rules, the risk
that Pat would enforce such rules with violence was incidental to defendants’
employment of Pat. Accordingly, plaintiffs allege sufficient facts to support
vicarious liability against Okabe.
The demurrer to the fourth cause of action is OVERRULED.
C.
Conclusion
The demurrer filed by Thomas Okabe is OVERRULED in its
entirety.
II.
DEMURRER TO COMPLAINT FROM DEFENDANT HARUKO
MINAKAWA, AS TRUSTEE OF THE MINAKAWA TRUST
Defendant Haruko Minakawa, as Trustee of the Minakawa
Trust’s request for judicial notice of Los Angeles Municipal Code (“LAMC”) §
45.33 is GRANTED, pursuant to Evidence Code § 452(b).
Defendant Minakawa, the alleged owner of the subject
property, filed a joinder attempting to join in and adopt all the arguments
raised in co-defendant Thomas Okabe’s demurrer. Minakawa cites no authority
allowing for such a joinder. Nevertheless, Minakawa provided notice to
plaintiffs of the basis for its joinder and paid a filing fee for the demurrer.
To the extent that the joinder is permissible, the arguments adopted by
Minakawa are without merit for the same reasons discussed with respect to the
demurrer filed by Okabe.
With respect to Minakawa, Minakawa hired Alta as the
management company for the subject property. (Compl. ¶ 3.) Alta hired Pat.
(Compl. ¶ 3.) Plaintiffs allege that defendants, including Minakawa, did not
terminate Pat’s employment despite Pat’s vehicular assault of non-party tenant
Irene Melgoza in 2020. (Compl. ¶ 5.) As a result, Pat was still resident
manager when he confronted Barriga on March 26, 2021. (Compl. ¶ 7.) Barriga
complained to Minakawa’s son in a certified letter. (Compl. ¶ 9.) As part of
this complaint, defendants were sent a video depicting Pat striking Melgoza
with his vehicle, a police report describing Barriga’s altercation with Pat,
and written complaints describing Pat’s harassing conduct. (Compl. ¶ 9.)
Despite knowing about Pat’s propensity to violence, Minakawa did nothing to
stop Pat. (Compl. ¶ 10.) As a result, Pat was still resident manager when he
attacked Maldonado and Sedeno. (Compl. ¶ 11.)
With respect to the demurrer based on misjoinder of parties,
although the encounters with Barriga and Maldonado/Sedeno were separate, the
common thread between the two encounters with respect to Minakawa is that Minakawa
allegedly knew Pat had a propensity for violence but allowed Pat to remain
employed as the property manager, thereby enabling both encounters to occur.
The two encounters thus arise out of Minakawa’s failure to remove Pat from his
position as resident manager and thus are subject to common questions of law
and fact.
With respect to the demurrer to the fourth cause of action
for battery, the demurrer is without merit for the same reasons with respect to
Okabe.
Defendant Minakawa also demurs to the second cause of action
for violation of LAMC § 45.33 as to plaintiff Barriga because this statute was
not in effect on February 24, 2021 and March 26, 2021, the dates when Barriga
complained to Alta in a letter and Pat confronted Barriga about the letter,
respectively. (Compl. ¶ 6, 7.)
LAMC § 45.33 became effective on August 6, 2021. (RJN Ex.
A.) However, Barriga also alleges that throughout the winter of 2021-22, after
LAMC § 45.33 took effect, Pat “continued to harass and intimidate plaintiffs,”
which includes Barriga, “and their neighbors.” (Compl. ¶ 10.) Such harassment
is alleged to include “[t]hreatening to take away Plaintiffs’ parking
privileges on numerous occasions,” “[t]hreatening plaintiff Barriga with
physical harm, by both word and gesture,” “[r]epeatedly harassing, injuring,
and threatening other tenants (such as Irene Melgoza) in order to intimidate
plaintiffs into following the Property’s rules as laid down by Pat and/or
Defendants.” (Compl. ¶ 29.)
These allegations are sufficient for pleading purposes.
(LAMC § 45.33 [tenant harassment includes “[r]educing or eliminating housing
services required by a lease, contract or law, including the elimination of
parking if provided in the tenant's lease or contract” and “[t]hreatening a
tenant, by word or gesture, with physical harm”].) With respect to Pat’s
harassment of neighbors, LAMC § 45.35(A) allows “any person . . . who will
fairly and adequately represent the interests of an aggrieved tenant(s) under
this article.” Barriga pleads ultimate facts that the Court treats as true at
the pleading stage. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531,
550 [“[T]he complaint ordinarily is sufficient if it alleges ultimate rather
than evidentiary facts”].) Minakawa can obtain the dates of all alleged harassment
committed by Pat in discovery.
The demurrer filed by Haruko Minakawa, as Trustee of the
Minakawa Trust is OVERRULED in its entirety.
III.
MOTION TO STRIKE PORTIONS OF COMPLAINT BY
DEFENDANT THOMAS OKABE DBA ALTA PROPERTIES
Defendant Okabe moves to strike allegations in support of
and prayer for punitive damages. As discussed above with respect to Okabe’s
demurrer, plaintiffs allege Okabe was aware of Pat’s propensity for violence
yet retained him as the resident manager, thereby leading to the two encounters
alleged in the Complaint. Plaintiffs’ allegations may support a finding of
malice. (Civ. Code §3294(c)(1) [malice means “conduct which is 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”].)
Further, plaintiffs’ allegation that Pat felt emboldened to
commit the alleged batteries is supported by the lack of punishment after the
vehicular assault against Irene Melgoza. (Compl. ¶¶ 5, 43.)
The motion to strike filed by Okabe is DENIED.
IV.
MOTION TO STRIKE PORTIONS OF COMPLAINT BY
DEFENDANT HARUKO MINAKAWA, AS TRUSTEE OF THE MINAKAWA TRUST
Defendant Minakawa moves to strike allegations in support of
and the prayer for punitive damages based on the arguments of Okabe’s motion to
strike.
As discussed above with respect to Minakawa’s demurrer,
plaintiffs allege that Minakawa was aware of Pat’s propensity for violence yet
did nothing to remove him as the resident manager, thereby leading to the two
encounters alleged in the Complaint. Plaintiffs’ allegations may support a
finding of malice. (Civ. Code §3294(c)(1).)
The motion to strike filed by Minakawa is DENIED.
Ten (10) days for defendants Okabe and Minakawa to answer.