Judge: James A. Mangione, Case: 37-2023-00011911-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00011911-CU-PO-CTL C M VS PERPETUAL MOTION SOLUTIONS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Perpetual Motion Solutions, Inc. dba Apex School of Movement San Diego ('Apex') and Keith Holcombe's Demurrer is sustained.

Plaintiff C.M.

Defendants demur to all causes of action asserted by Plaintiff C.M. as uncertain and argue C.M. lacks standing. The Court agrees that the FAC is uncertain as to which causes of action C.M. is seeking medical expenses related to J.M.'s treatment and which, if any, causes of action seek damages independent from the damages sought by J.M. Therefore, the Court sustains the demurrer with leave to amend as to the causes of action asserted by Plaintiff C.M.

Eighth Cause of Action Defendants demur to the cause of action for gender violence in violation of Civil Code section 52.1 (the Tom Bane Civil Rights Act) and section 52.4. Plaintiffs did not oppose the demurrer to the Tom Bane Civil Rights Act. Therefore, the demurrer as to that part of the eighth cause of action is sustained without leave to amend.

As to the section 52.4 allegations, the statute states that '[a]ny person who has been subjected to gender violence may bring a civil action for damages against any responsible party'. (Civ. Code § 52.4(a).) Plaintiffs contend that, because Defendants were acting in loco parentis to both J.M. and his assailant at the time of the assault, they qualify as a legally responsible party. Defendants argue that a cause of action for gender violence must be brought against the person who committed the act. The Court agrees with Defendants. This position is supported by the jury instructions for this cause of action, which require an act committed by the defendant, and the statutory exception for vicariously liability on employers. Although this exception is not applicable in this case, it shows legislative intent that the cause of action be pursued only against individuals directly involved in the acts constituting gender violence. Therefore, the demurrer is sustained without leave to amend as to the eighth cause of action.

In sum, the demurrer is sustained without leave to amend as to the eighth cause of action and with leave to amend as to Plaintiff C.M.

-- Defendants' Motion to Strike is granted in part.

Punitive Damages Plaintiffs seek punitive damages based on the allegedly fraudulent statements made by Defendant Calendar No.: Event ID:  TENTATIVE RULINGS

3085523  11 CASE NUMBER: CASE TITLE:  C M VS PERPETUAL MOTION SOLUTIONS INC [IMAGED]  37-2023-00011911-CU-PO-CTL Holcome to C.M. related to Apex's childcare qualifications, monitoring systems and bullying policy.

Additionally, Plaintiffs allege that Defendants failure to enforce their bullying policy against a child who had previously demonstrated dangerous propensities coupled with their failure to properly supervise the children and failure to adhere to licensing requirements constitutes malice. The Court disagrees. As to the fraud allegations, punitive damages are only available where the alleged misrepresentation was made 'with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.' (Civ. Code, § 3294(c)(3).) There are no allegations in the FAC to support the conclusion that Defendants intended to deprive Plaintiffs of any rights or cause injury. As to the malice allegations, the Court finds that the alleged conduct fails to demonstrate a 'willful and conscious disregard of the rights or safety of others.' (Id. § 3294(c)(1).) This ruling is without prejudice, and Plaintiffs may seek leave to amend should discovery later reveal additional facts that could justify punitive damages.

Child-Care Facility/Licensing Defendants seek to strike all allegations referencing child-care facility licensing requirements, the Education Code and characterization of Apex as a child-care facility. Plaintiffs did not oppose Defendants request to strike the allegations referencing Education Code sections 45125.1 (FAC ¶ 18) or 44865 (FAC ¶ 19 at pg. 4:21 & 4:23, id. ¶ 49 at pg. 9:8.) Therefore, the motion is granted as to these allegations. As to the allegations that Apex is a child-care facility, the Court finds it inappropriate to strike these allegations at this time. As evidenced by the FAC, there are times in which Apex has children in its facility without parental supervision. At the pleading stage, this is sufficient to justify the allegations raised in the FAC.

Alter Ego Alter ego is a theory of liability which would allow a Plaintiff to pierce the corporate veil. It is an ultimate fact to be proved at trial. At this stage in the proceedings, the allegations in the FAC are sufficient to support this claim. Therefore, striking such allegations is improper.

In sum, the motion to strike is granted as to the claim for punitive damages and references to the Education Code and denied as to the remaining allegations.

The amended complaint must be filed within twenty-one (21) days and may not contain any allegations stricken by the Court.

The minute order is the order of the Court.

Calendar No.: Event ID:  TENTATIVE RULINGS

3085523  11