Judge: Frank M. Tavelman, Case: 23BBCV03012, Date: 2024-03-15 Tentative Ruling
Case Number: 23BBCV03012 Hearing Date: March 15, 2024 Dept: A
The Court is not requesting oral
argument on this matter. Pursuant to California Rules of Court, Rule
3.1308(a)(1) notice of intent to appear is required. Unless the Court
directs argument in the Tentative Ruling, no argument will be permitted unless
a “party notifies all other parties and the court by 4:00 p.m. on the court day
before the hearing of the party’s intention to appear and argue. The
tentative ruling will become the ruling of the court if no notice of intent to
appear is received.”
Notice may be given either by email at
BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ALLEGATIONS:
Timothy Goeke Jr.
(Plaintiff) brings this action against Cri-Help, Inc. (Cri-Help), Brandon
Fernandez, Gary Horejsi, Mitchell Jordan, Charles Burstin, Junie Gonzalez, Kim
Long, Diane Baker, Mary Grayson, Renee Brazell, Emma Corell, Marlene Nadel,
Emmy Olea, and Harrison Bloom (Individual Defendants) (collectively
Defendants). Plaintiff alleges that he was assaulted while staying at a
facility owned and operated by Cri-Help.
Defendants now demur to Plaintiff’s First Amended Complaint
(FAC). Defendants present a special demurrer for uncertainty as to the whole
FAC. Defendants also present a demurrer to each cause of action therein.
Plaintiff filed a late opposition to the matter, which the Court will exercise
its discretion to consider and Defendants have replied.
ANALYSIS:
I.
LEGAL STANDARD
The grounds for a
demurrer must appear on the face of the pleading or from judicially noticeable
matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311,
318.) A demurrer for sufficiency tests whether the complaint states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue
involved in a demurrer hearing is whether the complaint states a cause of
action. (Id.)
A demurrer assumes
the truth of all factual, material allegations properly pled in the challenged
pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how
unlikely or improbable, the plaintiff’s allegations must be accepted as true
for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural
Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not
include contentions; deductions; conclusions of fact or law alleged in the
complaint; facts impossible in law; or allegations contrary to facts of which a
court may take judicial notice. (Blank, supra, 39 Cal. 3d
at 318.)
Pursuant to Code of
Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a
complaint has been filed may demur to the pleading on the grounds that the
pleading does not state facts sufficient to constitute a cause of action, or
that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse
of discretion to sustain a demurrer without leave to amend if there is a
reasonable probability that the defect can be cured by amendment. (Schifando
v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)
II.
MERITS
Meet and Confer
C.C.P. §§ 430.41(a)
and 435.5(a) requires that the moving party meet and confer with the party who
filed the pleading that is subject to the demurrer and/or motion to strike.
Upon review the Court finds the meet and confer requirements were met. (Asiryan
Decl. ¶ 2.)
Demurrer for
Uncertainty
A demurrer may be
brought when the pleading is uncertain, ambiguous, or unintelligible. (C.C.P. §
430.10 (f).) “A demurrer for uncertainty is strictly construed, even where a
complaint is in some respects uncertain, because ambiguities can be clarified
under modern discovery procedures.” (Khoury v. Maly’s of California, Inc.
(1993) 14 Cal.App.4th 612, 616.) As a result, a special demurrer for
uncertainty is not intended to reach failure to incorporate sufficient facts in
the pleading but is directed only at uncertainty existing in the allegations
already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825.)
Where complaint is sufficient to state a cause of action and to apprise
defendant of issues he is to meet, it is not properly subject to a special
demurrer for uncertainty. (See Id.; see also Gressley v. Williams
(1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be
overruled where the allegations of the complaint are sufficiently clear to
apprise the defendant of the issues which he is to meet”].)
Here, Plaintiff has
included 13 Individual Defendants as parties in his FAC. The FAC refers to each
of the nine causes of action as being directed at all Defendants. However, the
FAC contains no specific factual allegations as to what any of these Individual
Defendants did to make them a party to this action. The FAC contains no
reference to any Individual Defendant in its description of the facts or in any
of the subsequent causes of action. The Court finds that the FAC is not
sufficiently clear to apprise the Individual Defendants as to the issues they
would need to address in a responsive pleading.
With respect to
Cri-Help, the Court finds the allegations, while ambiguous, are not so
uncertain that they are subject to a special demurrer. Plaintiff alleges that
he was a resident of Cri-Help and that he was attacked under their supervision.
(FAC p. 3.) Plaintiff further alleges that Cri-Help was understaffed to
appropriately supervise its residents to prevent such an assault. (FAC p.
3.) Lastly, Plaintiff alleges that he
was subject to criticism in a group section after the incident by a Cri-Help
coordinator. (FAC p. 3.) While the Court agrees that these allegations are
lacking a great deal in specificity, they are sufficient to put Cri-Help on
notice of the claims against which they must defend.
Accordingly, the
demurrer for uncertainty is SUSTAINED with 20 days’ leave to amend as concerns
the individual Defendants and OVERRULED (as to uncertainty only) as concerns
Cri-Help. Because Cri-Help’s demurrer
also asserts additional basis, the Court continues its analysis beyond simply
uncertainty.
As concerns leave to
amend, the Court is cognizant that Plaintiff previously amended his Complaint;
however, that amendment was not made in light of a demurrer from Defendants. This is the first substantial challenge to
Plaintiff’s pleadings. Accordingly, the Court finds that Plaintiff should be
afforded the initial opportunity to cure any defects.
First COA –
Professional Negligence - Moot
“The elements of a
cause of action for professional negligence are (1) the existence of the duty
of the professional to use such skill, prudence, and diligence as other members
of the profession commonly possess and exercise; (2) breach of that duty; (3) a
causal connection between the negligent conduct and the resulting injury; and
(4) actual loss or damage resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 821.)
Defendants’ demurrer
to this cause of action is stated as to Individual Defendants only. As the
demurrer for Individual Defendants has been sustained on other grounds with
leave to amend, Individual Defendants’ demurrer to this cause of action is
MOOT.
Second, Third, and Fourth COA - Sustained
without Leave to Amend
Plaintiff’s second
cause of action is for Failure to Provide Safe Environment. The Court is
unaware of such a cause of action. While such failure may be part and parcel of
a party’s negligence, there is no authority that it can serve as its own cause
of action. Indeed, the FAC refers to California Civil Code § 1714 which
outlines the duty of care in negligence actions. Plaintiff has already pled
negligence and this cause of action is both unsupported and duplicative.
The same defect
applies to Plaintiff’s third and fourth causes of action for Negligent Security
and Unfit Staff. The Court is not aware of any authority establishing these as
individual causes of action. Their existence is predicated on allegations of institutional
negligence which has already been pled in Plaintiff’s negligence cause of action
against Cri-Help.
Accordingly, Cri-Help’s
demurrer to second, third, and fourth cause of action is SUSTAINED without
leave to amend.
Fifth Cause of Action
- Intentional Infliction of Emotional Distress - Sustained with Leave to Amend
“The elements of a
prima facie case for the tort of intentional infliction of emotional distress
are: (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. 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, [citation and ellipses omitted].)
Plaintiff’s
allegations as concerns this cause of action are as follows:
Cri-Help facilitator, Jonie, questioned Goeke in front of
his peers during a group session, and then allowed fellow client/patients to
belittle Goeke for not defending himself against the assault by Joshua, causing
Goeke to suffer severe depression, anxiety, and embarrassment to this day.
Additionally, cofounder Marlene once again brought up the violent confrontation
during a group meeting which included Goeke, stating “it’s a terrible shame
about the guy who drank the hand sanitizer.”
(FAC p. 7.)
As a corporate
employer, Cri-Help may be liable for unauthorized intentional torts through a
theory of vicarious liability, authorization, or subsequent ratification. (Lisa
M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297; C.R.
Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.) Nevertheless,
Plaintiff fails to allege sufficient facts to plead a theory of vicarious
liability because there are no facts establishing the requisite causal nexus
between the alleged torts committed by facilitator Jonie and co-founder
Marlene. Plaintiff has not alleged facts supporting that Jonie and Marlene’s
conduct was related to their work for Cri-Help or that their comments were
reasonably foreseeable as a consequence of the nature of the work. Nor does he
plead sufficient facts to establish alternative theories of authorization or
ratification.
Accordingly,
Cri-Help’s demurrer to the fifth cause of action is SUSTAINED with 20 days’
leave to amend.
Sixth COA –
Declaratory Relief - Sustained without Leave to Amend
“The declaratory
relief statute should not be used for the purpose of anticipating and
determining an issue which can be determined in the main action. The object of
the statute is to afford a new form of relief where needed and not to furnish a
litigant with a second cause of action for the determination of identical
issues.” (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d
465, 470.)
Plaintiff’s FAC
presents no allegations which are specific to the cause of action for
Declaratory relief. It appears the relief sought in the cause of action is
comprised entirely of Plaintiff’s other claims for negligence.
Accordingly, Cri-Help’s
demurrer to this cause of action is SUSTAINED without leave to amend.
Seventh & Eighth
COA - Abandonment & Abuse – Sustained with Leave to Amend
Plaintiff’s cause of
action for abandonment is uncertain, in that it contains no stated legal basis
or specific factual allegations. The FAC only refers to California Business
& Professions Code § 6106 and states that Cri-Help committed acts involving
moral turpitude, dishonesty and corruption. (FAC p. 7.) Business &
Professions Code § 6106 does not create an independent cause of action. The Court
finds the cause of action, as written, is not sufficient to withstand a demurer
for uncertainty.
The same can be said
of Plaintiff’s eighth cause of action for Abuse. Firstly, it is unclear from
the FAC whether Plaintiff is alleging abuse under the dependent adult statute,
and if so what provision. Second, the FAC is void of any factual allegations of
abuse, only stating generally that “Drug and alcohol rehab center patients can
also be harmed through abuse.” (FAC p. 8.) The Court finds the cause of action,
as written, is not sufficient to withstand a demurer for uncertainty.
Accordingly, Cri-Help’s
demurrer to the seventh and eight causes of action is SUSTAINED with 20 days’
leave to amend.
Ninth COA – Fraud –
Sustained with Leave to Amend
“The elements of fraud are (a) a misrepresentation (false
representation, concealment, or nondisclosure); (b) scienter or knowledge of
its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e)
resulting damage.” (Hinesley v. Oakshade
Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the
alleged fraud must be alleged factually and specifically as to every element of
fraud, as the policy of “liberal construction” of the pleadings will not
ordinarily be invoked. (Lazar v. Superior
Court (1996) 12 Cal.4th 631, 645.)
To properly allege fraud against a corporation, the plaintiffs must plead the
names of the persons allegedly making the false representations, their
authority to speak, to whom they spoke, what they said or wrote, and when it
was said or written. (Tarmann v. State
Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
The Court finds that
Plaintiff’s cause of action for fraud is subject to demurrer. Plaintiff pleads
no facts averring to fraud in his FAC.
Allegations of fraud must be pled with specificity. Plaintiff’s entire cause of action consists of
a citation to California Penal Code § 550(b). Plaintiff has not stated any
facts as to fraudulent representations made by any employee of Cri-Help, nor
has he pled authority of any persons to speak on Cri-Help’s behalf.
Accordingly, Cri-Help’s
demurrer to the ninth cause of action is SUSTAINED with 20 days’ leave to
amend.
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RULING:
In the
event the parties submit on this tentative ruling, or a party requests a signed
order or the court in its discretion elects to sign a formal order, the
following form will be either electronically signed or signed in hard copy and
entered into the court’s records.
ORDER
Cri-Help, Inc. &
13 Individual Defendants’ Demurrer came on regularly
for hearing on March 15, 2024 with appearances/submissions as noted in the
minute order for said hearing, and the court, being fully advised in the
premises, did then and there rule as follows:
THE SPECIAL DEMURRER FOR UNCERTAINTY IS
SUSTAINED AS TO INDIVIDUAL DEFENDANTS WITH 20 DAYS’ LEAVE TO AMEND.
INDIVIDUAL DEFENDANTS’ DEMURRER TO THE FIRST
CAUSE OF ACTION IS MOOT.
CRI-HELP’S DEMURRER TO THE SECOND, THIRD, FOURTH,
AND SIXTH CAUSES OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND. CRI-HELP’S DEMURRER TO THE FIFTH, SEVENTH,
EIGHTH, AND NINTH CAUSES OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.
CRI-HELP’S SPECIAL DEMURRER FOR UNCERTAINTY IS
OVERRULED.
UNLESS
ALL PARTIES WAIVE NOTICE, CRI-HELP TO GIVE NOTICE.