Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from an alleged assault.  Plaintiff Dennis Stankie was visiting Defendant Santa Monica Bay Woman’s Club (the “Club”) when he claims an administrator of the Club assaulted him.  The unnamed administrator yelled at Plaintiff to “get out” and then pushed him.   

Plaintiff is appearing in pro per and filed a form complaint with four causes of action for (1) general negligence, (2) intentional tort, (3) premises liability, and (4) elder abuse.   

This hearing is on Defendant’s demurrer and motion to strike the complaint.  Defendant argues that (1) the intentional tort claim is subject to demurrer because Plaintiff states only the legal elements of the claim without setting forth facts in support of each element; (2) the premises liability claim fails because Plaintiff has not alleged any dangerous condition of the premises or an actual injury; (3) Plaintiff’s elder abuse claim fails because Plaintiff has not sufficiently alleged an assault or battery, and (4) Plaintiff’s prayer for punitive damages should be stricken because Plaintiff has not alleged malice, oppression or fraud.   

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 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.”).)  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.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(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), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendant submits the Declaration of Christopher Todd which attests the parties met and conferred by telephone, at least five days before the demurrer and motion to strike was filed.  This satisfies the meet and confer requirements of §§430.41 and 435.5.  

PAGE LIMITS 

Plaintiff has filed a largely single-spaced opposition which is a blatant attempt to circumvent the page limits.  An¿oversize brief is treated the same as a¿late-filed brief.  (Cal. R. Ct. 3.1113(g).)  The Court has discretion to disregard late-filed papers and therefore also has discretion to disregard¿oversize briefs.  (See¿Cal. R. Ct. 3.1300(d).)  The Court exercises its discretion to disregard Plaintiff’s oversize opposition.   

DISCUSSION 

Intentional Tort Claim 

Defendant demurs to the intentional tort claim on the ground it fails to set forth facts but only recites the elements from the CACI instruction on emotional distress.  The Court concludes that, read as a whole, the complaint does allege an intentional tort of battery.     

In demurring, Defendant focuses solely on the following paragraph in Plaintiff’s complaint:  

Stankie is 74 years old a disabled senior person.  Santa Monica Bay Woman’s Club (SMBWC) employee committed ELEDER ABUSE (sic).  1.  Plaintiff Stankie is not required to prove physical injury to recover damages for severe emotional distress.  2. Plaintiff Stankie claims that Doe defendant’s conduct caused him to suffer severe emotional distress.  3. Doe defendant’s conduct was outrageous.  4. Plaintiff suffered severe emotional distress.  5. Doe defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress. 

However, that paragraph cannot be read in isolation.  In ruling on the demurrer, the Court must accept as true the preceding allegation that Plaintiff was pushed by the Club’s administrator, which would constitute a battery, an intentional tort.  (People v. Robinson (2011) 199 Cal.App.4th 707, 715 (battery can occur from a push); Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498 (battery is an intentional tort).) 

Accordingly, the Court overrules the demurrer to Plaintiff’s intentional tort claim. 

Premises Liability 

Defendant argues that Plaintiff’s claim for premises liability fails because Plaintiff has not alleged a dangerous condition of the premises nor has he alleged any actual injury.  The Court agrees with the result but not the reasoning.   

¿An initial and essential¿element of recovery for¿premises liability is proof a¿dangerous condition existed.¿(Barrett v. City of Claremont¿(1953) 41 Cal.2d 70, 72–73.)  Where the alleged dangerous condition is the threat of an assault, the requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.  Here, Plaintiff has failed to allege any knowledge on the part of the Club as to the unnamed administrator’s propensity for violence.   

Accordingly, the Court sustains the demurrer to Plaintiff’s claim for premises liability with 20 days’ leave to amend.   

Elder Abuse 

Defendant argues that Plaintiff’s elder abuse claim fails because Plaintiff has not alleged an assault or battery.  The Court disagrees. 

Defendant does not dispute that a battery would support a claim for physical elder abuse.  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 alleges he was pushed.  The reasonable inference is that he did not consent to the touching, and the “push” was intended to harm and offend Plaintiff.  This is sufficient to survive a challenge on a demurrer.   

Punitive Damages 

Defendant argues that Plaintiff’s prayer for punitive damages should be stricken because he has not alleged malice, oppression or fraud, and there are no facts that Defendant approved or ratified the conduct of the unnamed administrator.  While the Court cannot conclude that a battery (particularly one on a disabled senior) would not support a claim for punitive damages, the Court agrees with Defendant on the second ground.   

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 the motion to strike Plaintiff’s claim for punitive damages with 20 days’ leave to amend.  

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant’s demurrer and GRANTS the motion to strike, both with 20 days’ leave to amend.   

 

IT IS SO ORDERED. 

 

DATED:  May 24, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court