Judge: Daniel M. Crowley, Case: 19STCV31873, Date: 2022-10-14 Tentative Ruling
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Case Number: 19STCV31873 Hearing Date: October 14, 2022 Dept: 28
Defendant John Nutt’s Demurrer with Motion to Strike
Having considered the moving, opposing and reply papers, 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, 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 August 25, 2022, Nutt filed a Demurrer with Motion to Strike to be heard on October 4, 2022. The hearing date was continued to October 14, 2022. On October 3, 2022, Plaintiff filed an opposition. On October 7, 2022, Nutt filed a reply.
Trial is scheduled for May 31, 2023.
PARTY’S REQUESTS
Nutt requests the Court sustain Nutt's demurrer to Plaintiff’s first through sixth causes of action on the basis that they do not state facts sufficient to constitute a cause of action and are uncertain.
Nutt also requests the Court grant a Motion to Strike, striking all references to punitive damages being imposed upon Nutt, or allegations of malice.
Plaintiff requests 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.)
“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].)
“To establish a cause of
action for the malicious prosecution of a civil proceeding, a plaintiff must plead
and prove that the prior action (1) was commenced by or at the direction of the
defendant and was pursued to a legal termination in his, plaintiff’s, favor;
(2) was brought without probable cause; and (3) was initiated with malice.” (Bertero
v. National General Corp. (1974) 13 Cal.3d 43, 50, internal citations
omitted.)
Abuse of an elder includes physical abuse, neglect, abduction, deprivation of care, and financial abuse. Welfare and Institutions Code § 15610.07. In order to make a claim for elder abuse, it is necessary to not only establish Plaintiff was an elder, but also to show, by clear and convincing evidence, that defendant has been guilty of recklessness, oppression, fraud, or malice in commission of the abuse. Welfare and Institutions Code § 15657.
“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, but this time limitation shall not apply to motions specified in subdivision (e).” (CCP § 435(b)(1), italics added.) “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (CRC 3.1322(b), italic added.) “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.” (CCP § 471.5(a).)
“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437(a).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ivanoff, supra, 9 Cal.App.5th p. 725.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted 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 any order of the court.”
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)].)
“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)
A plaintiff may not add a cause of action via amendment if said cause of action is wholly different. “Other courts have used almost identical language; the test is not whether under technical rules of pleading a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant. The power to permit amendment is denied only if a change is made in the liability sought to be enforced against the defendant.” (Klopstock v. Superior Court in and for City and County of San Francisco (1941), 17 Cal.2d 13, 20.)
DISCUSSION
Summary
Plaintiff’s complaint alleges that Nutt, a security officer at the subject premises, 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 complaint provides 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 seven causes of action against Defendants: Nutt specifically demurrers to the third through seventh causes of action. These causes of action are for false imprisonment and false arrest, defamation, conspiracy to violate civil right, malicious prosecution and conspiracy to commit malicious prosecution, and elder abuse.
First and Second Causes of Action
The Court finds Nutt’s demurrer to the first and second causes of action to be inappropriate. Plaintiff has presented causes of action for assault and battery and negligence in every single complaint. Nutt has not demurred to these causes of action previously. As the basis for these causes of action has not changed, Nutt’s demurrer to these two causes of action is untimely. The Court overrules the demurrer as to these causes of action.
Third Cause of Action: False Imprisonment/False Arrest without a Warrant In Violation of Civil Rights and Obstruction of Justice
Nutt claims that this cause of action “confusingly morphs four claims” for false imprisonment, false arrest without a warrant, violation of civil rights and obstruction of justice and is therefore uncertain as to what is being pled. The Court agrees that this appears to be an amalgamation of different causes of action; this is confusing as Plaintiff has previously plead false imprisonment and false arrest as a separate cause of action from violation of civil rights. The actual content of the cause of action is nearly identical to that in the third amended complaint, which the Court sustained with leave to amend due to the uncertainty. Given that it is still uncertain, the Court sustains the demurrer as to this cause of action.
Fourth Cause of Action – Defamation
Nutt alleges that Plaintiff does not meet the essential elements to plead a cause of action for defamation. As both relevant parties are private citizens and this concerns a private matter, a cause of action for defamation requires an 1) intentional publication of a statement 2) that is false, 3) defamatory and 4) unprivileged that 5) has a natural tendency to cause damage. The fourth cause of action fails to allege that there is a statement made, much less a statement published. In fact, the entirety of the cause of action does not mention any words spoken. It only refers to “painfully handcuffing Plaintiff...” and acting with “intent to restrain and falsely imprison Plaintiff.” If Plaintiff is referencing a statement made somewhere else in the fourth amended complaint, it is unclear what is being referenced. Additionally, there is no indication that whatever statement is being referenced was published. The pleading does not state facts to constitute a cause of action. The Court sustains the demurrer as to this cause of action.
Fifth Cause of Action - Conspiracy to Violate Civil Rights
The Court is unsure as to what Plaintiff’s cause of action consists of for this claim. The cause of action notes that Defendants conspired to prevent the truthful report of witnesses regarding potential crimes or civil actions, and that they “maliciously attempted to suppress the truth.” This could potentially apply to a number of causes of action and is exceedingly vague. The only referenced statute within this cause of action is Government Code § 815.2, which establishes potential liability for the City under a doctrine of Respondeat Superior. As such, the Court finds this pleading uncertain, and sustains the demurrer as to this cause of action.
Sixth Cause of Action – Malicious Prosecution and Conspiracy to Commit Malicious Prosecution
Nutt alleges that Plaintiff does not meet the essential elements to plead a cause of action for malicious prosecution. A cause of action for malicious prosecution requires a 1) prior action commenced by or at the direction of defendant, 2) pursued to a legal termination in plaintiff’s favor, 3) that was brought without probable cause and 4) initiated with malice. Nutt claims that Plaintiff does not identify any claim pursued by Nutt against Plaintiff, or any underlying action that was terminated on the merits in favor of Plaintiff.
The Court agrees. While Plaintiff clearly outlines that she had to defend herself against two criminal charges in court, she follows this up with the statement that “the ticket was abandoned and eventually dismissed by the Pasadena City Attorney’s Office prior to the court appearance.” There are no facts that provide this claim was pursued to a legal termination in Plaintiff’s favor, and thus Plaintiff has plead insufficient facts to constitute a cause of action. The Court sustains the demurrer as to this cause of action.
Plaintiff’s Opposition
Plaintiff’s opposition consists mostly of factual allegations made in the Fourth Amended Complaint. It is true that all of these facts are pled in the complaint; however, the facts provided do not meet the pleading standards required for the third through sixth causes of action. The third cause of action is still uncertain and mixes multiple different potential causes of action. The fourth cause of action still does not have allegations of publication. The fifth cause of action is still uncertain. The sixth cause of action still does not show any legal termination. All existing issues remain. The Court sustains the demurrer.
Motion to Strike
The demurrer was sustained as to the third through sixth causes of action, and thus the Motion to Strike is moot as to those causes of action, any portions of those causes of action, and the prayers for relief made regarding those causes of action.
The request for punitive damages as to the first cause of action, assault and battery, is appropriate. Punitive damages are based in either malice, oppression or fraud. Here, allegations of an intentional tort generally satisfy the definition of malice as “intent to cause injury.” The facts alleged in the operative complaint certainly provide a basis for punitive damages.
The request for punitive damages in relation to the second cause of action, negligence, is also appropriate. This cause of action is based in negligence regarding the investigation of allegations against Plaintiff. Earlier in the complaint, Plaintiff alleges that Morgan intentionally made false statements in order to arrest Plaintiff without a warrant. This would provide a basis for a claim for punitive damages on the basis of fraud or intentional misrepresentation. Thus, the facts as pled provide a potential basis for punitive damages. The motion to strike is denied as to the request for punitive damages in the second cause of action.
CONCLUSION
Defendant John Nutt’s Demurrer is SUSTAINED, without leave to amend, as to the third through sixth causes of action. The Demurrer is OVERRULLED as to the first and second cause of action.
Defendant John Nutt’s Motion to Strike is MOOT, as to all requests regarding the third through sixth causes of action. The Motion to Strike is DENIED, as to all other requests.
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.