Judge Jill Feeney, Case 22STCV15961 2023-02-27 Tentative Ruling

This is an action arising from an altercation that resulted in the death of Dean Joseph Dowling. Plaintiffs Valentina Dowling, Melissa Dowling, and James Dowling filed their Complaint against Defendants Nabeel Hawara, LST Stop LLC, and Young’s Market & Liquor on May 13, 2022.

On December 29, 2022, Plaintiff filed a Second Amended Complaint (“SAC”). The Court notes that Defendant Danny Hawara is not named as a defendant in the caption of the SAC. Since the Doe Amendment was filed prior to the filing of the SAC, it is not clear to the Court that Danny Hawara is a defendant in the action at this time. However, since Defendant Danny Hawara has filed the instant Demurrer the Court will treat him as a defendant in the SAC.

Young’s demurs to Plaintiffs’ SAC on the grounds that the SAC fails to state facts sufficient to constitute causes of action for battery, wrongful death/negligence, and wrongful death/premises liability. Young’s argues that Plaintiffs fail to establish agency liability because the SAC consists of legal conclusions.

Plaintiffs argue that the SAC sufficiently alleges facts that support a cause of action for battery. Plaintiffs argue that the SAC names the assailants who committed the battery and identifies them as Young’s employees. Plaintiffs argue that the SAC meets the pleading requirements for negligence because it may be pled in general terms and there was a special relationship between Decedent and Young’s employees.

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 of Civ. Proc., § 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. § 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, § 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 § 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).)

Young’s counsel testified that the parties met and conferred via email. (Beagle Decl., ¶12.) Although this process was insufficient because meet and confer must take place via telephone or in person, failure to meet and confer is not a basis to overrule or sustain a demurrer.

“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.)

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.)

Here, the SAC states that Maria Villegas, Renne Ramirez, and “Johnny” threatened, struck, and beat Decedent without his consent while he was on Defendants’ premises. (SAC ¶10.) As a result, Decedent suffered physical harm and died. (Id.)

The SAC states the assailants struck and beat Decedent with intent to harm him and that Decedent was harmed. Because Decedent suffered physical harm and died as a result of the beating, it is also reasonable to infer that a reasonable person in Decedent’s position would have been offended by the touching. Therefore, the SAC sufficiently pleads a cause of action for battery against Villegas, Ramirez, and “Johnny.”

The SAC also names the assailants Maria Villegas, Renne Ramirez, and “Johnny” as employees of Young’s and LST who were working within the course and scope of their employment at the time of the incident and/or as agents for them. These facts identifying the assailants as employees/agents of Young’s and LST working within the course and scope of their employment are sufficient to support a cause of action for battery against Young’s under respondeat superior.

proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” (Id. p. 645.)

“17. At all times mentioned herein, said Defendants, their agents, employees, and/or independent contractors, and each of them negligently and recklessly conducted themselves and negligently and recklessly owned, operated, maintained, controlled, possessed, managed, and supervised certain businesses, specifically YOUNG’S and LST STOP.

18. At all times mentioned herein, YOUNG’S and LST STOP employee MARIA VILLEGAS invited, permitted, authorized, and allowed RENNE RAMIREZ, “JOHNNY”, and DOES 4-25 to enter the property. Among other things, VILLEGAS and others negligently and recklessly invited, permitted, authorized, instructed, ordered, encouraged, and allowed the attack against Decedent while Decedent was on the premises of YOUNG’S and LST STOP. VILLEGAS, RAMIREZ, “JOHNNY”, and DOES 4-25 negligently and recklessly attacked, grabbed, touched, struck, and beat Decedent so as to cause Decedent to be wrongfully killed at on or about February 18, 2022, at YOUNG’S and LST STOP.”

(SAC ¶¶17-18.) Additionally, the SAC alleges that Defendants negligently hired, trained, retained, and supervised their employees and agents, failed to have sufficient hiring protocols, should have known their employees were unfit for their duties, and failed to summon law enforcement or seek medical aid for Decedent. (SAC ¶¶19-21.) Defendants undertook control of Decedent and caused his beating and incapacity, creating a special duty to render aid and care. (SAC ¶22.) Additionally, Decedent was an invitee and customer of Young’s and LST. (SAC ¶6.)

Plaintiff cites Morris v. De La Torre (2005), 36 Cal.4th 260, where a court held a restaurant owed a duty to undertake reasonable and minimally burdensome measures to assist customers and invitees who face danger from imminent or ongoing criminal assaultive conduct occurring on the premises.

Because the SAC now alleges that Decedent was a customer and invitee of Young’s and LST, it is reasonable to infer that Defendants had a duty to provide assistance to Decedent, who faced danger from ongoing criminal conduct occurring on the premises.

Young’s also demurs to the cause of action for premises liability on the grounds that the facts fail to show that the maintenance of the property caused Decedent’s harm. Additionally, the facts do not establish that Defendants owed Decedent any duty.

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.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

Here, the SAC alleges that Defendants’ premises were defective and dangerous because Defendants allowed a dangerous public and private nuisance without sufficient security, supervision, lighting, or warnings to the public. (SAC, ¶30.) Additionally, Defendants’ employees left him incapacitated, unattended, and unable to care for himself. (Id.) The SAC now also alleges that Defendants’ employees/agents committed the battery and that Young’s and LST ratified the employees’/agents’ conduct. (SAC, ¶¶34-35.) This type of claims may be raised via a cause of action for premises liability. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 (2001).

Young’s first argues that punitive damages are barred as a matter of law in wrongful death actions. Plaintiff argues that punitive damages are available for survivorship claims under Code Civ. Proc., section 377.34, citing Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738.

The damages recoverable in a wrongful death suit are expressly limited to those recoverable in a survival action under Code Civ. Proc, section 377.34. (Code Civ. Proc, section 377.61.) Code Civ. Proc, section 377.34 provides that the only damages recoverable in an estate’s lawsuit on the decedent's cause of action are the damages sustained by decedent before death and punitive damages the decedent would have been entitled to had decedent lived. (Garcia v Superior Court (1996) 42 Cal.App.4th 177, 180.)

Here, the SAC states that Decedent survived the incident for a short time before death and that Plaintiffs bring this action as his successors in interest. (SAC ¶8.) Plaintiffs may seek punitive damages under Code Civ. Proc., section 377.34 for the punitive damages that Decedent would have been entitled to had he survived.

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, however, Young’s is not a corporation.

Here, the SAC alleges that neither Young’s nor LST reprimanded, disciplined, terminated, or discharged their agents and employees as a result of the incident alleged herein. (SAC, ¶¶14, 26, 35.) Additionally, Defendants Nabeel Hawara and Danny Hawara negligently and recklessly hired, trained, and retained their employees despite knowing they were unfit for their duties. (SAC, ¶20.)

These facts are conclusory and fail to show that Defendants had actual knowledge of their employees’/agents’ conduct. Failing to discipline their employees after the incident does not show that Defendants had actual knowledge of their employees’ conduct .There are also no facts showing Defendants knew their employees were unfit for their duties. A conclusory statement that Defendants knew of their employees’ unfitness is insufficient to sustain a demand for punitive damages.