Judge: Daniel M. Crowley, Case: 22STCV19894, Date: 2022-10-18 Tentative Ruling

Case Number: 22STCV19894    Hearing Date: October 18, 2022    Dept: 28

Defendant Sahni Entreprises's Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On June 17, 2022, Plaintiff Damon Williams (“Plaintiff”) filed this action against Defendants Ronald Washington (“Washington”), Action Patrol Services, Inc. (“APS”), 7-Eleven #18534C (“7-Eleven”) and Sahni Enterprises (“Sahni”) for negligence, premises liability, battery and negligent hiring and supervision.

On August 25, 2022, Plaintiff filed the FAC.

On September 26, 2022, Washington and APS filed an answer.

On September 22, 2022, Sahni filed a Demurrer with Motion to Strike to be heard October 18, 2022. On October 4, 2022, Plaintiff filed an opposition. On October 10, 2022, Sahni filed a reply.

Trial is currently scheduled for December 15, 2023.

PARTY’S REQUESTS

Sahni requests the Court sustain the demurrer to the third and fourth causes of action for failure to state a cause of action and uncertainty. Sahni also requests the Court strike the request for punitive damages stemming from the fourth cause of action.

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.)

Whatever may be the rule in other jurisdictions, the rule is well settled in this state that the mere fact one or two individuals or corporations own all of the stock of another corporation is not of itself sufficient to cause the courts to disregard the corporate entity of the last corporation and to treat it as the alter ego of the individual or corporation that owns its stock. In addition, it must be shown that there is such a unity of interest and ownership that the individuality of such corporation and the owner or owners of its stock has ceased; and it must further appear that the observance of the fiction of separate existence would, under the circumstances, sanction a fraud or promote injustice. Bad faith in one form or another must be shown before the court may disregard the fiction of separate corporate existence. (Cleaning P. Co. v. Hollywood L. Service (1932) 217 Cal. 124.)

“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.)

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] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency. [Citation.] Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .[Citation.] While the existence of an agency relationship is ‘typically a question of fact, when ‘“the evidence is susceptible of but a single inference,”’ summary judgment may be appropriate.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85.)

“It is a settled rule of the law of agency that a principal is responsible to third persons for the ordinary contracts and obligations of his agent with third persons made in the course of the business of the agency and within the scope of the agent’s powers as such, although made in the name of the agent and not purporting to be other than his own personal obligation or contract.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178.)

“[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

Plaintiff’s complaint alleges that Plaintiff was shopping at the subject 7-Eleven when he was approached by security guard Washington, who was on felony parole at the time of the incident; Washington said something to Plaintiff, which Plaintiff did not hear. Washington then swung a flashlight or taser type device at Plaintiff, knocking him unconscious. The Complaint specifically alleges that Washington was employed by APS as an independent contractor. Sahni is identified as the franchisor of the subject 7-Eleven.

Sahni demurrers on the basis that Washington is identified as an employee of APS and an independent contractor, instead of as an agent of Sahni. An agency or employment relationship is required to establish vicarious liability for battery, as Sahni itself is not alleged to be the party who committed the assault. Additionally, an employment relationship is required to establish a cause of action for negligent hiring and supervision, as without any sort of agency or employment relationship, there can be no negligent hiring or supervision.

The FAC does state generally that “Defendants hired/employed/supervised defendant Ronald Washington as an employee/agent to work as a security guard,” in the fourth cause of action. However, the facts alleged do not provide a basis to establish this relationship between Sahni and Washington. Washington is more specifically identified under the “Factual Allegations” section as being an employee of APS. Although it is stated that Washington was an independent contractor for Sahni, it is unclear if Washington himself was contracted, or if APS was contracted and provided Washington pursuant to the terms of the agreement. An agency relationship must be established in order to establish a non-aggressor's potential liability for an intentional tort such as battery. Sahni has met its burden, which now shifts to Plaintiff.

Plaintiff states that the FAC allegations already establish that Sahni had an agency relationship with Plaintiff. Plaintiff cites to multiple conclusory statements with no factual allegations such as that Defendants were “owners, co-owners, agents, representatives, partners, and/or alter egos of their co-defendants,” and that “each of the Defendants...were and are in some manner responsible for the actions...herein alleged.” Conclusory statements such as these do not meet the factual pleading standard required in California. Plaintiff additionally cites to the statement that “Defendant Ronald [Washington] was acting as an independent contractor at the time of the incident...Sahni enterprises is liable for the action of Defendant Ronald [Washington]...” This is also insufficient to meet the factual pleading standard. The FAC does not even clearly alleged that Washington was acting as an independent contractor for Sahni—it merely states he was working as an independent contractor. Plaintiff has not met his burden, so the Court will sustain the demurrer.

As the Court sustained the demurrer to both the third and fourth causes of action, the motion to strike is moot.

CONCLUSION

Defendant Sahni Entreprises's Demurrer is SUSTAINED, with 30 days leave to amend, as to the third and fourth causes of action.

Defendant Sahni Entreprises's Motion to Strike is MOOT.

            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.