Judge Jill Feeney, Case 22STCV23430 2023-01-18 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 dba Beelman’s (“Beelman’s”), Back to Our Roots INC, dba Beelman’s, 1200 Management LLC, and 600 Tower LLC on July 20, 2022.

Beelman’s seeks to strike portions of paragraphs 8, 14, 20, 21, 22, 27, 28, 29, 43, 44, 53, 54, 62, 63, 71, 72, and the prayer for relief, which relate to Plaintiff’s demand for punitive damages.

Plaintiff argues that the FAC adequately pleads facts to assert punitive damages because the FAC includes six new facts supporting the allegation that the employee working behind the bar was a managing agent. Specifically, he was a managing agent because he cited Beelman’s corporate policy that authorized Johnson’s conduct. Plaintiff also argues that Beelman’s had advance knowledge of Johnson’s unfitness. Plaintiff argues that Beelman’s was personally guilty of malice and oppression. Finally, Plaintiff argues that the Court should not consider facts outside of the FAC.

Beelman’s argues that Plaintiff’s FAC fails to state facts showing that the employee behind the bar had discretionary authority by the corporate employer over decisions that ultimately determine corporate policy. Beelman’s also argues that the FAC contradicts itself, stating the employee at issue communicated an important policy that is not within the job duties of a bartender or lower level employee.

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.

As before, Plaintiff’s FAC 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., ¶18.) 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., ¶19.) Plaintiff believes Beelman’s had a policy to physically and forcefully stop all patrons from leaving the premises with alcohol. (Id.)

The FAC now states that Plaintiff complained about Johnson’s conduct to an employee behind the bar and asked to speak to a manager. (FAC ¶20.) The employee did not attempt to contact an owner or a manager and did not state that one was unavailable. (Id.) The employee told Plaintiff that Johnson followed company policy by using physical force and inflicting pain on Plaintiff to prevent her from leaving the premises with alcohol. (Id.) The FAC also alleges that Beelman’s had advanced knowledge of Johnson’s misconduct and did not take action to prevent further misconduct. (FAC ¶22.) The FAC also states Beelman’s did not terminate Johnson and destroyed surveillance footage from the date of the incident to cover it up. (FAC ¶28.)

Beelman’s references evidence outside of the FAC, including information about whether Johnson was terminated from Beelman’s. These facts are outside the FAC and will not be considered.

The allegations that the “employee behind the bar” was a managing agent who authorized and ratified Johnson’s actions are sufficient to survive a motion to strike. The FAC states that the employee did not respond to Plaintiff’s request for a manager and informed her that Johnson was following company policy. The FAC further states that the employee exercised substantial discretionary authority over decisions that determined Beelman’s corporate policy. Whether the employee was in fact a managing agent is a factual question that may not be resolved on a motion to strike. Here though, the Court must accept the allegations as true.

Plaintiff argues that Beelman’s failure to terminate Johnson, failure to prevent further misconduct, and destruction of surveillance footage constitutes ratification. Plaintiff argues that Beelman’s is personally responsible for acting with malice or oppression. Cal. Civ. Code section 3294(b) provides that 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. Here, Plaintiff does allege that officers, directors or managing agents destroyed surveillance footage.

With respect to the allegation that Defendant knew of Johnson’s unsuitability for the position and hired him on despite this knowledge, the motion is granted. The Complaint contains no specific facts as to his unfitness (prior to the allegations at hand) or that any officer, director, or managing agent of Beelman’s knew of this unfitness. Conclusory statements unsupported by facts are insufficient to sustain a claim for punitive damages.