Judge Jill Feeney, Case 21STCV10276 2023-01-18 Tentative Ruling

Defendant demurs to Plaintiff’s cause of action for premises liability on the grounds that the TAC fails to state facts showing that there was an extraordinarily high degree of foreseeability that criminal conduct would take place on the premises. Plaintiff also demurs to the second cause of action for negligent hiring on the grounds that it fails to state facts that CVS hired security staff or that any of its employees were improperly trained. Plaintiff also argues that the TAC does not allege facts sufficient to support the causes of action for assault and battery because there are no facts that Defendant’s agents intended to put Plaintiff in imminent fear of a harmful or offensive touching or intended to actually touch Plaintiff in a harmful or offensive manner. Finally, Defendant demurs to the cause of action for Intentional Infliction of Emotional Distress (“IIED”) on the grounds that the TAC only contains conclusory statements that Defendant’s actions were extreme and beyond the bounds of decency.

Defendant also moves to strike portions of paragraphs 68, 82, and the Prayer for Relief that concern punitive damages on the grounds that Defendants’ employees’ actions as alleged in the TAC were not oppressive, fraudulent, or malicious. Additionally, the TAC fails to name an officer, director, or managing agent of Defendant.

Plaintiff argues that the cause of action for premises liability is properly pled because a business entity has an affirmative duty to take reasonable steps to avoid harm to patrons and Defendant failed to do so. Plaintiff also argues that the cause of action for negligent hiring is sufficiently pled because the TAC alleges that facts showing that Defendant’s hiring of Doe 3 and Doe 4 created a dangerous condition because of Doe 3’s violent disposition. Plaintiff also argues that Defendant had a duty to protect Plaintiff due to a special relationship, that Plaintiff’s assault and battery was foreseeable, that Defendant failed to contact emergency services, and that the TAC properly alleges foreseeable criminal assaultive behavior. Plaintiff also alleges that the causes of action for battery, assault, and IIED are properly pled under a theory of respondeat superior.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) As is relevant here, a party may object to a pleading through a demurrer arguing “the pleading does not state facts sufficient to constitute a cause of action.” (CCP § 430.10(e).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

A party filing a demurrer “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 shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., §§ 430.41 (a)(4).)

Defendant demurs to Plaintiff’s causes of action for premises liability, negligent hiring, assault, battery, and IIED on the grounds that the TAC fails to state sufficient facts to support them. Defendant also moves to strike the demand for punitive damages on the grounds that the TAC fails to state facts to support the demand and that the TAC fails to state facts necessary to seek punitive damages against a corporation.

As an initial matter, it appears this demurrer and motion to strike are untimely. A defendant must file a demurrer within the same period of time it has to answer, which is 30 days after service of a Complaint or Cross-Complaint unless extended by stipulation or court order. (Code Civ. Proc., section 430.40(a).) However, a court has discretion to consider untimely demurrers in the interests of justice so long as the parties’ substantial rights are not affected. (Code Civ. Proc., section 473(a)(1); Jackson v Doe (2011) 192 CA4th 742, 749.)

Here, Plaintiff filed her TAC on October 4, 2022 and served it the same day via mail and email. Service was deemed complete on October 4, 2022 because the TAC was served via email. (Code Civ. Proc., section 1010.6, section (a)(4)(A).) The deadline to file a demurrer was November 3, 2022. Defendant filed its demurrer and motion to strike on November 9, 2022. The demurrer is untimely.

Plaintiff’s TAC states generally that on February 10, 2020, Plaintiff was buying medication at a CVS in Santa Monica California when employees using an overhead announcement requested that she attend to her dog who was waiting in her car in front of the store. (TAC ¶¶14-17.) Plaintiff ran out the door to attend to her dog and several employees followed. (TAC ¶¶ 18, 19.) Plaintiff re-entered the premises with her dog on a leash. (TAC ¶19.) When she re-entered, Doe 3 (a CVS employee) aggressively approached Plaintiff with raised fists while engaging in a verbal altercation with Plaintiff. (TAC ¶20.) Doe 3 kicked within 2-3 feet in Plaintiff’s direction with his left foot before he was restrained. (TAC ¶21.) Doe 4, a CVS manager, intervened by restraining Doe 3. (TAC ¶22.) A patron, Doe 51, who is a minor, then attacked Plaintiff after witnessing Doe 3’s behavior, repeatedly punching and stepping on her head. (TAC ¶¶23-24.) Plaintiff asked CVS employees standing nearby to stop the attack which they did not. (TAC ¶25.) After Doe 51 severely beat Plaintiff, Doe 4 intervened. (TAC ¶25.)

Businesses such as shopping centers, restaurants, and bars have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control, against reasonably foreseeable criminal acts of third parties. (Delgado v. Trax Bar & Grill, 36 Cal.4th 224, 235.) “A proprietor’s general duty of maintenance, which is owed to tenants and patrons, includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Id. at p. 236.) “Duty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures.” (Id. at p. 238.) Due to the high social costs of imposing a duty on landowners to hire private police forces, “a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards.” (Ibid.) This “requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises.” (Ibid; see also Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1149-1150 [finding a heightened standard necessary due to the difficulty or impossibility of predicting when a criminal will strike, and the difficulty of removing all means available to a criminal intent on a particular victim or goal].)

Here, the TAC states that Defendant allowed its employees to “exhibit violent and aggressive conduct and behavior towards the patrons of its store during business hours and on duty” and failed to “take reasonable steps to secure and prevent its employees…from exhibiting conduct such as that exhibited towards Plaintiff.” (TAC, ¶33.) Defendant “knew of the dangers posed by the presence of a large and violent store employee” and “failed to properly protect their patron…by continuing to employ Doe 3 without warning patrons of” his violent disposition.” (TAC, ¶35.) Doe 3’s behavior gave “an impression to other customers that [Plaintiff] should be assaulted and battered.” (TAC, ¶37.) Plaintiff was a regular patron of the CVS. (TAC, ¶42.)

The TAC does not allege sufficient facts that Doe 51’s criminal act against Plaintiff was foreseeable. The facts alleged do not indicate that there were similar incidents of violent crime on the premises or any other facts showing the criminal act was foreseeable. The TAC fails to allege which security measures Plaintiff should have implemented to prevent the incident. The TAC also fails to allege facts such as past incidents at the CVS involving Doe 3 indicating how it was foreseeable that Doe 3 would have incited Doe 51, a patron, to attack Plaintiff. Thus, the TAC does not allege any facts that if accepted as true would show that Defendant should have imposed additional security measures to protect Plaintiff based on the foreseeability of the criminal behavior of Doe 3 and Doe 51.

Defendant’s claim that the cause of action is uncertain is not well taken. Demurrers for uncertainty are disfavored. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125.) This is because any ambiguities can be clarified during discovery. (Id.) Such demurrers should be granted only when the pleadings are so incomprehensible that a defendant cannot respond. (Id.) Here, the basis of the complaint is clear and defendant has been more than able to respond

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee…Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (McKenna v. Beesley (2021) 67 Cal.App.5th 552.)

Here, the TAC states that Defendant knew of Doe 3’s violent propensities because Doe 4 restrained Doe 3 at the time of the incident and because Doe 3 lunged at and made verbal threats to Plaintiff. (TAC ¶¶55-56.) However, these facts fail to show that Defendant knew Doe 3 was an unfit employee when he was hired and chose to retain him. Thus, there are no facts in the TAC showing that Defendant knew that hiring Doe 3 created a risk or hazard that then materialized on the day of the incident.

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

The issue here is the theory of liability with respect to Defendant, Doe 3’s employer. Plaintiff pleads respondeat superior liability here. (TAC ¶ 8.) “[A] principal may be liable for the wrongful conduct of its agent, even if that conduct is criminal, in one of three ways: (1) if the ‘”principal directly authorizes . . .the tort or crime to be committed”; (2) if the agent commits the tort ‘in the scope of his employment and in performing service on behalf of the principal’, ‘regardless of whether the wrong is authorized or ratified by [the principal];, and even if the wrong is criminal; or (3) if the principal ratifies its agent’s conduct ‘after the fact by . . . voluntary[ily] elect[ing] to adopt the [agent’s] conduct . . . as its own.” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.)

“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.)

Plaintiff alleges that Doe 4 battered Plaintiff when he failed to deescalate the incident after Doe 51’s attack. Plaintiff further alleges that Doe 4 placed his hands on Plaintiff as she was struck in the head by Doe 51 before Doe 4 eventually moved to restrain Doe 51. Plaintiff contends that Plaintiff did not consent to Doe 4’s touch and that Doe 4’s conduct contributed to Plaintiff’s fall to the floor where she was repeatedly struck by Doe 51. (TAC ¶ 70.)

The elements for a cause of action for 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) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Plaintiff has sufficiently pled this cause of action. Plaintiff alleges that Doe 3 tried to attack her and instigated the attacked by Doe 51. Moreover, Plaintiff alleges that Doe 3, Doe4 and other employees of Defendant stood by while Plaintiff was attacked without call 911 or otherwise provided her with prompt assistance. Under these circumstances, IIED is properly pled.

When seeking damages from an employer, an employer is not liable for punitive damages arising from an employee’s actions pursuant to Cal. Civ. Code section 3294(a) unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Cal. Civ. Code section 3294(b).) 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. (Id.)

Here, the TAC does not even mention the word officer, director or managing agent, much less that any such person had had advance knowledge of the unfitness of an employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are sought or was personally guilty of oppression, fraud, or malice.