Judge Elaine W. Mandel, Case 20STCV46976 2022-10-13 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20STCV46976, Date: 2022-10-13 Tentative Ruling

Case Number: 20STCV46976 Hearing Date: October 13, 2022 Dept: P

Tentative Ruling
Adefuye v. Surly Goat Group, Inc. et al., Case No. 20STCV46976
Hearing date October 13, 2022
Defendants Chompol Properties and Sweeney’s Demurrer to First Amended Complaint Motion to Strike Punitive Damages

Pro per plaintiff Adefuye alleges he was scheduled to work as a bouncer at The Surly Goat, where he alleges, he was assaulted by security guards. The First Amended Complaint alleges assault; battery; breach of contract; NIED; malice; Ralph Act violation; Bane Act violation; premise liability; and vicarious liability.

Defendants Chompol Properties, erroneously named as Surly Goat, Inc., and Sweeney, an officer of Chompol, demur and move to strike irrelevant matter and punitive damages.

First Cause of Action (Simple Assault)
An assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present and a civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm. Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6-7; CACI 1301.

Defendants argue no facts allege what defendants did to assault him. Paragraph 33 alleges “Chris, 3SG and the other security guards proceeded to put Plaintiff in a chokehold, throw Plaintiff to the ground, jump on Plaintiff’s back, and assault and batter the Plaintiff all the while as Plaintiff was in the Dart Room of the Establishment,” as facts which demonstrate assault. FAC ¶ 33. Plaintiff does allege how Chompol or Sweeney were responsible for the alleged assault. SUSTAINED WITH LEAVE TO AMEND.

Second Cause of Action (Battery)
A battery is any intentional, unlawful, and harmful contact by one person with the person of another. The essence of a battery is a harmful contact, intentionally done. A contact is “unlawful” if it is unconsented to. Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526; CACI 1300.

Plaintiff alleges defendants used force, including putting him in a chokehold, throwing him to the ground and jumping on him. FAC ¶ 33. However, no facts allege Chompol nor Sweeny (who was not present) battered him. It is insufficient to allege, without more, that defendants are vicariously liable because the security guards may have been employed by them. SUSTAINED WITH LEAVE TO AMEND.

Third Cause of Action (Breach of Contract)
The elements for breach of contract cause of action are: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) breach and (4) damage. Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.

Defendants argue no facts allege a contract between plaintiff and defendants, nor how defendants breached such contract. Plaintiff argues defendants breached their contract by failing to pay him for time worked. No facts are alleged that a contract existed between plaintiff and moving defendants. SUSTAINED WITH LEAVE TO AMEND.

Fourth Cause of Action (Negligent Infliction of Emotional Distress)
The elements for negligent infliction of emotional distress are: (1) duty of due care (direct victim or bystander); (2) breach of such legal duty; (3) damage; and (4) causation. Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129; see CACI 1620-1623.

“[A] special relationship exists between a business proprietor and not only its patrons or customers, but also its invitees. [Citations.] Moreover, courts long have recognized that a person may be an ‘invitee’ even if he or she is not at the time of injury a paying customer: ‘Prospective customers on the premises of any business open to ... provide services ... are easily invitees by any definition.’ [Citations.]” Morris v. De La Torre, (2005) 36 Cal.4th 260, 271-272.

Defendants claim that plaintiff cannot maintain an NIED claim because plaintiff cannot maintain causes of action for breach of contract, assault, or battery against defendants, and plaintiff does not state facts that show what defendants did to cause him emotional distress.

Plaintiff alleges Chompol owed him a duty of as a “patron at the Establishment and resided to the Dart Room.” FAC ¶ 27. However, plaintiff fails to set forth facts to show how Sweeney owed a duty of care. Plaintiff alleges Chompol breached its duty of care by allowing plaintiff to suffer injuries on its premises via the security guards’ acts. However, plaintiff fails to allege any breach of duty by Sweeney.

Plaintiff sufficiently alleges facts to show Chompol’s acts or failure to act caused Plaintiff’s suicidal thoughts and actions. However, plaintiff fails to show how Sweeney caused Plaintiff’s severe emotional distress. SUSTAINED WITH LEAVE TO AMEND.

Fifth Cause of Action (Malice)
Malice is not an independent tort. Plaintiff provides no authority to the contrary. SUSTAINED WITHOUT LEAVE TO AMEND.

Sixth Cause of Action (Ralph Act Violation)
The elements for Ralph Act violation are: (1) defendant threatened, or committed, violent acts against plaintiff; (2) a motivating reason was defendant’s perception of plaintiff's age or disability or prohibited discriminatory motive; (3) harm; and (4) substantial factor. Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 881; CACI 3063.

Plaintiff fails to allege how defendants discriminated against him, fails to identify the bases for said discrimination and fails to show defendants’ conduct was a substantial factor in causing harm. Plaintiff argues discrimination can be inferred due to his national origin and/or because he requested payment. This is not sufficient. SUSTAINED WITH LEAVE TO AMEND.

Seventh Cause of Action (Bane Act Violation)
Bane Act liability occurs when a defendant’s threats, intimidation or coercion interferes or attempts to interfere “with the exercise or enjoyment by any individual of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” Civil Code § 52.1(a); see City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077; see CACI 3066.

Defendants argue there was no allegation of violence or threatened violence, and plaintiff does not argue how the violence was due to his membership in one of the classifications set forth in Civil Code section 51.7. Plaintiff fails to state sufficient facts to support a cause of action under the Bane Act by claiming defendants interfered with plaintiff’s right to free speech. Compl. ¶ 101. Plaintiff fails to state how the security guards’ actions were at the direction of defendants, how he was exercising his free speech rights or how defendants interfered with that right. SUSTAINED WITH LEAVE TO AMEND.

Eighth Cause of Action (Premises Liability)
“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998. At issue is whether Plaintiff sufficiently pled that Defendant owed him a duty. A defendant has a “duty to take reasonable steps to secure common areas against the foreseeable criminal acts of third parties that would likely occur in the absence of such precautionary measures.” Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [disapproved of on other grounds].

Defendants argue plaintiff fails allege causation. Plaintiff argues defendants owed a duty of care and should have known the premises was dangerous. Plaintiff alleges “the subject premises was at all times in a dangerous condition and constituted an unreasonable risk of harm to plaintiff of which plaintiff was unaware.” FAC ¶ 105. Causation is not sufficiently alleged. SUSTAINED WITH LEAVE TO AMEND.

Ninth Cause of Action (Vicarious Liability)
Defendants argue plaintiff does not allege facts that the guards who allegedly injured him were defendants’ employees. Plaintiff states “Chris Clauson (shift manager) and bouncers were working for Defendants” but does not state facts alleging they acted under the direction of defendants. FAC ¶ 115. Plaintiff alleges a security guard was directed to ask plaintiff to leave, but plaintiff does not allege the actions were within the scope of employment. Plaintiff does not allege any actions Sweeney took which caused plaintiff’s injuries. SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike
Defendants seek to strike paragraphs 38, 44, and 45 (reference to Penal Code sections) on the grounds that it is irrelevant, false, or improper. This is a civil case; there are no criminal penalties. Thus, the motion to strike paragraphs 38, 44, and 45 are granted.

The demurrer is sustained; there are no allegations that Chompol or Sweeney acted with malice, fraud, or oppression. The motion to strike the request for punitive damages is GRANTED.