Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This action arises from an alleged battery at a nightclub.  On September 17, 2024, Plaintiff Maria C. Arangu Torrealba went to Defendant West Hollywood Surprise, LLC dba Rocco’s WEHO erroneously sued as Rocco’s Tavern CC, LLC.  (First Amended Complaint (“FAC”) ¶ 12.)  Defendant Tyler Clark is the general manager of Rocco’s WEHO.  (Id. ¶5.) 

Plaintiff alleges that after being seated near the dance floor, two employees (one identified as “Matthew” and the other unnamed) were engaged in horseplay.  (Id. ¶¶ 15-16.)  The employees then careened into Plaintiff and struck her on the right side of her head.  (Id. ¶17.)   

Plaintiff alleges she lost awareness and began to first laugh, then cry, uncontrollably.  (Id. ¶ 18.)  Plaintiff complained of pain on her head and neck, dizziness and nausea.  (Id. ¶19.)  Plaintiff claims that Tyler watched the entire commotion but never approached her table and refused to fill out an incident report or investigate the matter.  (Id. ¶¶ 20-21.)  Tyler provided a bag of ice only after asked by Plaintiff’s wife.  (Id. ¶23.)           

Plaintiff was later seen at Cedars-Sinai Marina del Rey where she was given a CT scan of her head.  (Id. ¶25.)  It was determined that Plaintiff had suffered a concussion.  (Id.) 

The operative First Amended Complaint alleges five claims for (1) battery, (2) premises liability, (3) intentional infliction of emotional distress, (4) negligent hiring, supervision or retention, and (5) general negligence.   

This hearing is on Defendants Rocco WEHO and Tyler Clark’s demurrer to the FAC.  Defendants argue that (1) Plaintiff has not alleged any offensive contact by Clark, thus failing to satisfy an essential element of a claim for battery; (2) Plaintiff has not alleged any extreme or outrageous conduct by Defendants or any intent by Defendants to cause her emotional distress, thus failing to satisfy an essential element of a claim for intentional infliction of emotional distress; (3) Plaintiff’s claims for negligence and premises liability against Clark fail because he is not the owner or operator of the subject premises; and (4) Plaintiff’s claim for negligent hiring, supervision or retention against Clark fails because “Matthew” and the unnamed employee were engaged in “horseplay” which is not part of the business of Rocco WEHO, and Plaintiff has not alleged that Clark hired the two employees, that the employees were unfit or that Clark had any knowledge of their unfitness.    

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing its meet and confer efforts.  (Code Civ. Proc. § 430.41(a)(3).)  Defendants submit the declaration of Ta’Nekeo S. Marcus which shows the parties spoke on April 1, 2024, which satisfies the meet and confer requirements of Code Civ. Proc. § 430.41.    

REQUEST FOR JUDICIAL NOTICE 

Defendants ask the Court to take judicial notice of Plaintiff’s First Amended Complaint.  The Court grants the request pursuant to Cal. Evid. Code §§452(d) and 453.  

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.)  

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.”).)  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 

Battery 

Clark argues Plaintiff has not stated a claim for battery against him because Plaintiff has not alleged he engaged in harmful or offensive contact.  The Court agrees. 

“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, 668-669.)   

Here, Plaintiff does not allege that Clark touched her in any way or caused her to be touched.  Her allegations are that Matthew and an unnamed employee careened into her and caused her injuries.  Meanwhile, she claims Clark stood by, watching and doing nothing.  These facts are insufficient to allege a claim of battery against Clark.    

Intentional Infliction of Emotional Distress 

Defendants argue that Plaintiff cannot allege extreme and outrageous conduct or that they intended to cause her severe emotional distress.  The Court agrees. 

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by 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.  Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)  

Here, Plaintiff’s injuries result from alleged horseplay by two employees of Rocco WEHO.  The alleged acts were not extreme and outrageous, and in any event were not undertaken by Clark.  And to the extent Clark failed to render assistance to Plaintiff after witnessing the horseplay, his failure cannot be said to be so extreme as to exceed all bounds of that usually tolerated in a civilized community.  Further, there are no facts alleged that Defendants intended to cause or recklessly disregarded the probability of causing emotional distress to Plaintiff.  Plaintiff does not allege that the employees intended to fall on her.  In sum, there are no facts alleged to support a claim for intentional infliction of emotional distress against either Defendant. 

Negligence/Premises Liability 

Clark argues Plaintiff has not stated a claim against him for negligence or premises liability because he did not owe a duty to Plaintiff and he did not own, possess or control the subject premises.  The Court disagrees in part.   

The elements of a premises¿liability and negligence cause of action are the same: duty, breach, causation, and¿damages.¿(Castellon v. U.S. Bancorp (2013) 220¿Cal.App.4th¿994, 998.)¿ Premises liability also requires a showing of ownership, possession, or¿control of a property.¿ “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or¿control.”  (Isaacs v. Huntington Mem'l Hosp. (1985) 38 Cal.3d 112, 134.)  Here, Plaintiff alleges that Clark is a general manager, but this fact is insufficient to suggest his control of the premises.  Notwithstanding, Clark’s role as general manager would create a duty on his part to protect customers of Rocco WEHO, and for this reason, Plaintiff’s claim for negligence survives even if her claim for premises liability does not.     

Negligent Hiring/Retention/Supervision 

Clark argues that Plaintiff’s claim for negligent hiring, retention, or supervision against him fails because Plaintiff has not alleged he hired “Matthew” or the unnamed employee, he knew the employees were unfit or he had any knowledge of their unfitness.  The Court agrees.   

The elements of a cause of action for negligent hiring, retention or supervision are: (1) the employer’s hiring, retaining or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment, and (4) harm occurs.  (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)   

Here, Clark is not the employer.  Even if he was, there is no allegation he knew Matthew and the other unnamed employee were unfit.  Accordingly, Plaintiff has failed to state a claim for negligent hiring, retention or supervision against Clark.   

 CONCLUSION 

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants’ demurrer with 20 days’ leave to amend.   

DATED:  May 16, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court