Judge: Edward B. Moreton, Jr., Case: 22STCV22175, Date: 2023-01-13 Tentative Ruling
Case Number: 22STCV22175 Hearing Date: January 13, 2023 Dept: 205
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john roe, Plaintiff, v. TRUNKS, LLC, et al., Defendants. |
Case No.:
22STCV22175 Hearing Date: January 13, 2023 [TENTATIVE]
order RE: DEFENDANT’S DEMURRER AND MOTION TO STRIKE |
MOVING PARTY: Defendant
Trunks LLC
RESPONDING PARTY: Plaintiff
John Roe
BACKGROUND
This case arises from an alleged assault of Plaintiff
John Roe by a bouncer employed by a security agency hired by Defendant Trunks
LLC. Plaintiff was denied entry into
Defendant’s bar based on Defendant’s policy requiring proof of Covid
vaccinations. Plaintiff asked for an exception
based on a medical condition (epilepsy) from Bouncer #1, when he claims Bouncer
#2 yelled “put down your fists” and then tasered him. Plaintiff alleges he did not have his fists
up nor was he threatening in any way. After
he took a photo of Bouncer #2, Plaintiff claims Bouncer #2 followed him for a
block from the bar, shouting and cursing at him. Plaintiff is appearing in pro per.
This hearing is on Defendant’s demurrer and motion to
strike. Defendant demurs to the
Complaint on grounds that Plaintiff has made no specific allegations against
Defendant; rather Plaintiff’s allegations relate to conduct by DOE defendants,
particularly Bouncer #2 and the independent security agency that employed Bouncer
#2. Defendant also moves to strike (1)
punitive damages allegations, (2) Plaintiff’s request for injunctive relief,
and (3) the use of the pseudo name John Roe in the Complaint. Plaintiff opposes the demurrer and motion to
strike primarily on grounds that he has not had the opportunity to conduct
meaningful discovery.
LEGAL STANDARD
“[A]
demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis
v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack or from matters
outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not
consider declarations, matters not subject to judicial notice, or documents not
accepted for the truth of their contents).)
For purposes of ruling on a demurrer, all facts pleaded in a complaint
are assumed to be true, but the reviewing court does not assume the truth of
conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962,
967.)
Further,
the court may, upon motion, or at any time in its discretion, and upon terms it
deems proper, strike any irrelevant, false, or improper matter inserted in any
pleading. (Code Civ. Proc., § 436, subd.
(a).) The court may also strike 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. (Code Civ. Proc., § 436, subd.
(b).) The grounds for a motion to strike
are that the pleading has irrelevant, false, or improper matter, or has not
been drawn or filed in conformity with laws.
(Code Civ. Proc., § 436.) The
grounds for moving to strike must appear on the face of the pleading or by way
of judicial notice. (Code Civ. Proc., § 437.)
Leave
to amend must be allowed where there is a reasonable possibility of successful
amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court
shall not “sustain a demurrer without leave to amend if there is any reasonable
possibility that the defect can be cured by amendment”); Kong v. City of
Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A
demurrer should not be sustained without leave to amend if the complaint,
liberally construed, can state a cause of action under any theory or if there
is a reasonable possibility the defect can be cured by amendment.”); Vaccaro
v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies
striking a complaint is capable of cure, the court should allow leave to
amend.”).) The burden is on the
complainant to show the Court that a pleading can be amended successfully. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
Demurrer
Defendant
demurs to the entire Complaint as uncertain because it claims Plaintiff has
made no allegations against it. Not so. Plaintiff clearly alleges that Bouncer#2 was
“working on behalf of Trunks”, and “Trunks LLC hired DOE 1 as their security
agency, in which they are responsible for the actions of the agent [Bouncer #2]
being on their premises and acting within their scope.”
Defendant
next argues that Plaintiff has not sufficiently alleged an intentional tort claim
because Defendant can only be liable under a theory of vicarious liability, and
there is no allegation Defendant approved or ratified the conduct. The Court disagrees. Vicarious liability is not the only way a
principal can be held liable for the conduct of its agent. “[A] principal may be liable for the wrongful
conduct of its agent, even if that conduct is criminal, in one of three ways:
(1) if the “‘principal directly authorizes … [the tort or] crime to be
committed’”; (2) if the agent commits the tort “in the scope of his employment
and in performing service on behalf of the principal”, “regardless of whether
the wrong is authorized or ratified by [the principal]”, and even if the wrong
is criminal; or (3) if the principal ratifies its agent’s conduct “after the
fact by … voluntar[ily] elect[ing] to adopt the [agent’s] conduct … as its own”. (Doe v. Roman Catholic Archbishop of Los Angeles
(2016) 247 Cal.App.4th 953, 969 (internal citations omitted).) Here, Plaintiff alleges Bouncer #2 was acting
within the course and scope of his agency.
Accordingly, the Court OVERRULES the demurrer to Plaintiff’s
first cause of action for an intentional tort.
Defendant
also demurs to Plaintiff’s negligence and premises liability claims on the
ground Plaintiff has not shown the conduct of the security guard was
foreseeable, i.e., that Defendant had constructive knowledge of Bouncer
#2’s propensity for violent conduct. The
Court disagrees as to the negligence claim.
A principal is liable for the negligence of its agent so long as the
misconduct occurs within the course and scope of the agency. (Civ. Code, §
2338; Acosta v. Glenfeld Dev. Corp. (2005)
128 Cal.App.4th 1278, 1300.)
Here, Plaintiff alleges Bouncer #2’s conduct was within the course and
scope of his agency. Accordingly, the
demurrer to the third cause of action for negligence is OVERRULED.
However,
the premises liability cause of action is different. Premises liability is a narrower tort, and it
often goes to the physical condition of the property or, at its extreme end,
the knowledge that the property was in a crime-ridden location and the property
owner had some duty to ensure safety. In
the criminal act context, we need to apply a heightened sense of foreseeability
before we hold a defendant liable for the criminal acts of another on this
theory. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1149-1150.) The complaint does not
allege sufficient facts to justify a cause of action for premises liability.
For example, there is no meaningful allegation that similar incidents occurred
at the location, something that is almost a necessity for liability. (Melton
v. Boustred (2010) 183 Cal.App.4th 521, 537 (“[I]n cases involving liability for third party criminal
conduct, the requisite degree of foreseeability rarely, if ever, can
be proven in the absence of prior similar incidents.”.) Accordingly, the demurrer to the second cause
of action for premises liability is SUSTAINED with leave to amend.
Motion to Strike
Defendant moves to strike Plaintiff’s punitive damages allegations
on the ground the allegations do not support a showing of willfulness,
oppression and malice. The Court
disagrees. “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.” (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. Not only
must there be circumstances of oppression, fraud or malice, but facts must be
alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157
Cal.App.3d 159, 166 (citations omitted).)
Allegations that merely plead the statutory phraseology are wholly
insufficient to state a basis for recovery of punitive damages. (Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1041.) Here,
Plaintiff’s allegations are not conclusory.
He has alleged acts that would support a finding of “oppression”,
“fraud” or “malice.” Plaintiff alleges
that Defendant’s agent, Bouncer #2, tasered him for no reason.
Defendant
also moves to strike Plaintiff’s allegations of punitive damages under Code
Civ. Proc. §3294. Section
3294 states that for a valid claim for punitive damages to be made against an
employer, the employer must have had advance knowledge of the unfitness of the
employee and employed him or her in conscious disregard of the rights or safety
of others “or authorized or ratified the wrongful conduct.” “With
respect to a corporate employer, the advance knowledge and conscious disregard,
authorization, ratification or act of oppression, fraud, or malice must be on
the part of an officer, director, or managing agent of the corporation.” Code Civ. Proc. §3294. There are no such allegations in the
Complaint. Accordingly, the Court GRANTS
Defendant’s motion to strike Tenant’s punitive damages claim. However, as there is a reasonable possibility
these defects can be cured with amendment, the Court will grant leave to
amend.
Defendant further moves to strike Plaintiff’s use of a pseudo
name throughout his Complaint. The Court
GRANTS the motion to strike on the grounds stated in its December 7,
2022 Minute Order. Plaintiff is not a
“protected person” within the meaning of Code Civ. Proc. §367.3(b)(1), entitled to
file a civil proceeding using a pseudonym.
Finally, Defendant moves to strike Plaintiff’s claim for injunctive
relief. Defendant does not explain why
the claim is subject to demurrer, other than conclusorily stating that “injunctive
relief is [an] improper remedy for [Plaintiff’s] causes of action.” As Defendant bears the burden to come forward
with arguments as to why the relief is improper and Defendant has not met its
burden, the Court DENIES Defendant’s motion to strike Plaintiff’s claim
for injunctive relief.
CONCLUSION
Based on the foregoing, the Court SUSTAINS
IN PART and OVERRULES IN PART Defendant’s demurrer. The Court sustains the demurrer to the
premises liability claim with 20 days leave to amend. The Court GRANTS IN PART and DENIES
IN PART the motion to strike. The
Court grants the motion to strike the punitive damages claim with 20 days leave
to amend. The Court grants the motion to
strike the pseudo name John Roe and orders Plaintiff to file within 20 days an amended
complaint replacing the pseudo name with his real name.
IT IS SO ORDERED.
DATED: January 13, 2023 ___________________________
Edward
B. Moreton, Jr.
Judge
of the Superior Court