Judge Jill Feeney, Case 22STCV23430 2022-10-24 Tentative Ruling

This is an action for battery, negligence, intentional infliction of emotional distress, premises liability, and negligent hiring, retention, training, and supervision arising from an altercation between Plaintiff and a security guard which took place in October 2020. Plaintiff filed her Complaint against Nicodemus Johnson, Artisanal Brewers Collective LLC, Back to Our Roots Inc., dba Beelman’s, 1200 Management LLC, and 600 Tower LLC on July 20, 2022.

2. “…and also authorized and ratified JOHNSON’s despicable, willful, wanton, malicious, and oppressive conduct by not stopping or reprimanding JOHNSON after he twisted Plaintiff’s arm and instead telling Plaintiff that JOHNSON was right to physically stop her from leaving with her beverage.” (Complaint, ¿ 38, 7:8-11);

3. “…and also authorized and ratified JOHNSON’s despicable, willful, wanton, malicious, and oppressive conduct by not stopping or reprimanding JOHNSON after he twisted Plaintiff’s arm and instead telling Plaintiff that JOHNSON was right to physically stop her from leaving with her beverage.” (Complaint, ¿ 48, 8:13-16);

4. “…and also authorized and ratified JOHNSON’s despicable, willful, wanton, malicious, and oppressive conduct by not stopping or reprimanding JOHNSON after he twisted Plaintiff’s arm and instead telling Plaintiff that JOHNSON was right to physically stop her from leaving with her beverage.” (Complaint, ¿ 57, 9:20-23);

Beelman’s argues the bartender who allegedly ratified Johnson’s actions at most ratified the initial contact with Plaintiff where Johnson blocked Plaintiff from leaving the bar with alcohol. Beelman’s also argues that the Complaint only states Beelman’s ratified Johnson’s conduct blocking Plaintiff from leaving the bar with alcohol. Even if Johnson’s conduct in punching Plaintiff amounted to malice, fraud, or oppression, the Complaint does not state that Beelman’s ratified this conduct.

Plaintiff argues that Beelman’s motion only discusses ratification, whereas the Complaint discusses other bases for punitive damages against an employer. Plaintiff argues that she adequately pleads Beelman’s ratified the first battery where Johnson stopped Plaintiff from leaving the bar with alcohol. Plaintiff also argues Beelman’s policy of stopping all patrons from leaving its premises with alcohol is malicious and oppressive because it is intended to cause injury to patrons. In the event this motion is granted, Plaintiff requests leave to amend because there are new facts to support her claims for punitive damages.

Beelman’s argues that the bartender’s alleged ratification only pertained to Johnson stopping Plaintiff from leaving the bar with alcohol and cannot be interpreted as ratification of subsequent conduct.

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).)

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.)

Managing agents are employees who exercise substantial discretionary authority over decisions that ultimately determine corporate policy. (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Managing agents include only those corporate employees who exercise substantial independent authority and judgment. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 567.) Whether an employee is a managing agent is a question of fact for decision on case-by-case basis. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 567.)

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (Code of Civ. Proc. sections 430.41; 435.5.)

Counsel for Beelman’s telephonically met and conferred with counsel for Plaintiff on September 20, 2022 and could not reach an agreement regarding the language at issue. (Lunsford Decl., ¶5.) Beelman’s satisfies the meet and confer requirement.

Plaintiff’s Complaint states that Beelman’s is a bar located in a 20-story multi-use building (“Property”) in Los Angeles. (Compl., ¶12.) On October 13, 2020, Plaintiff attempted to leave Beelman’s while holding a plastic cup of beer in her left hand. (Compl., ¶17.) As Plaintiff walked into the common areas of the Property, a security guard, Johnson, stopped Plaintiff by grabbing her left arm and twisting it behind her back. (Id.) The cup fell out of her hand and spilled out of the floor. (Id.) After being yelled at by Plaintiff’s friends, Johnson released Plaintiff. (Id.)

Johnson explained that he grabbed her because Beelman’s was concerned about maintaining its liquor license and patrons were not allowed to leave Beelman’s with alcohol. (Compl., ¶18.) Plaintiff believes Beelman’s had a policy to physically and forcefully stop all patrons from leaving the premises with alcohol. (Id.) Plaintiff complained about Johnson’s conduct to a bartender and asked to speak to a manager. (Compl., ¶19.) The bartender as a managing agent told Plaintiff Johnson was right to physically stop her from leaving with her beverage. (Id.)

As Plaintiff tried to leave the Property, Johnson began yelling obscenities at Plaintiff and threatened to hit her. (Compl. ¶20.) Plaintiff began screaming to attract the attention of other employees. (Compl., ¶21.) Other employees did not intervene but continued to watch the situation escalation until Johnson punched Plaintiff twice in the head and jaw with a closed fist. (Id.) Plaintiff lost consciousness and fell to the floor. (Id.)

The Complaint also alleges Johnson was unfit to work as a security guard because he lacked the requisite qualities and qualifications, and he was not properly trained or supervised. (Compl., ¶37.) Beelman’s employed Johnson with a conscious disregard of the rights and safety of others and authorized and ratified Johnson’s conduct by not stopping or reprimanding Johnson after he twisted Plaintiff’s arm and telling Plaintiff that Johnson was right to physically stop her from leaving with her beverage. (Comp., ¶38.)

Plaintiff’s Complaint fails to state facts that show the bartender had the requisite authority to ratify Johnson’s conduct. The complaint includes a conclusory statement that the bartender was acting as a managing agent. The Complaint alleges that the bartender informed Plaintiff that Johnson was right to stop Plaintiff from leaving the Property with alcohol. There are no other facts alleged in the Complaint about the bartender that would show the bartender had any independent discretionary authority or made decisions that determined Beelman’s policies. Thus, the bartender’s statement to Plaintiff regarding Johnson’s conduct did not constitute ratification.

Plaintiff also argues that Beelman’s failure to reprimand or stop Johnson after he grabbed Plaintiff’s arm is ratification of his conduct. However, Plaintiff does not name any specific officer, managing agent, or director who failed to discipline Johnson.

Additionally, even if these facts did constitute ratification, there are no facts to show that stopping Plaintiff from leaving the Property with alcohol constituted conduct that was malicious, oppressive, or fraudulent. Plaintiff’s Complaint states that Beelman’s had a policy of stopping every patron who attempted to leave with alcohol. Thus, Johnson’s conduct in stopping Plaintiff was intended to enforce Beelman’s policies, not to harm Plaintiff. There is also no evidence that Johnson’s actions during his first interaction with Plaintiff were so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.

With respect to Plaintiff’s second interaction with Johnson, Plaintiff’s Complaint shows that Johnson yelled obscenities and threats at Plaintiff before punching her twice with closed fists unprovoked. Johnson’s threatening behavior and lack of provocation are sufficient to support a finding that he intended to harm Plaintiff. However, the Complaint contains no facts alleging any conduct of any officer, director, or managing agent of Beelman’s ratifying this second interaction.

Although Plaintiff’s Complaint states that Beelman’s hired Johnson despite his unfitness to be a security guard, the Complaint contains no specific facts as to his unfitness or how Beelman’s knew of this unfitness. Conclusory statements unsupported by facts are insufficient to sustain a claim for punitive damages.