Judge: Joel L. Lofton, Case: 22AHCV01397, Date: 2023-05-04 Tentative Ruling

Case Number: 22AHCV01397    Hearing Date: May 4, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     May 4, 2023                            TRIAL DATE: No date.

CASE:                         LOUIS DOMINGUEZ, individually and as successor in interest to ALEX DOMINGUEZ; and TERESA DOMINGUEZ, individually and as successor in interest to ALEX DOMINGUEZ, v. SADARIUS LAWSON; NATIONWIDE GUARD SERVICES; INC.; 7-ELEVEN, INC.; L&M VENTURES, LLC, a corporation; and DOES 1 through 50, inclusive.

CASE NO.:                 22AHCV01397

DEMURRER WITH MOTION TO STRIKE

DEMURRING PARTY:       Defendant Nationwide Guard Services, Inc. (“Demurring Party”)

RESPONDING PARTY:      Plaintiffs Louis Dominguez and Teresa Dominguez (“Plaintiffs”)

SERVICE:                              Filed February 24, 2023

OPPOSITION:                       Filed April 21, 2023

REPLY:                                   Filed April 27, 2023

RELIEF REQUESTED

            Demurring Party demurrers to Plaintiffs’ first, third, fourth, and fifth causes of action.

            Demurring Party moves to strike Plaintiff’s prayer for punitive damages.

BACKGROUND

             This cases out of Plaintiffs Louis Dominguez and Teresa Dominguez’s, who file this claim individually and as successors in interest to Alex Dominguez (“Decedent”), (collectively “Plaintiffs”) claim that Defendant Sadarius Lawson stabbed and killed Decedent whole acting within his scope as a security guard with Defendant Nationwide Guard Services, Inc. (“NGS”) Plaintiffs allege that Decedent was a business invitee of the 7-Elevent store located at 690 Lake Avenue, Pasadena, California (“Store”). Plaintiffs allege that NGS had been hired by Defendants 7-Eleven, Inc. and L&M Ventures, LLC to provide security for the parking lot at the Store. 

            Plaintiffs filed this complaint on December 27, 2022, alleging five causes of action for (1) negligence, (2) premises liability, (3) negligent hiring and supervision, (4) battery, and (5) wrongful death.

TENTATIVE RULING

            Demurring Party’s demurrer is OVERRULED.

            Demurring Party’s motion to strike is GRANTED.

LEGAL STANDARD

            Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  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.)  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 v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)   

DISCUSSION

            First and Third Causes of Action for Negligence and Negligent Hiring and Supervision

            Demurring Party argues that Plaintiff’s first cause of action for negligence, second cause of action for premises liability, and third cause of action for negligent hiring and supervision are duplicative. Demurring Party also argues that each cause of action are uncertain and fail to state a claim.

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) “ ‘An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

Demurring Party asserts it is “well settled” that a demurrer may be raised based on a duplicative cause of action. However, in Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, the Court stated that duplicative causes of action “is not a ground on which a demurrer may be sustained.” Further, Plaintiffs allege two causes of action, that while similar and based on the same set of facts, have distinct references in case law. Lastly, Demurring Party argues that because the two causes of action are duplicative, its demurrer to both causes of action should be sustained without leave to amend. Demurring Party’s arguments are rejected.

Plaintiffs allege that Demurring Party had a duty to hire security guards who had appropriate qualifications and training. (Complaint ¶ 37.) Plaintiffs allege that Demurring Party hired Lawson, who was unfit for employment as a security guard and knew or should have known that Lawson was unfit. (Id. ¶¶ 38-40.) Plaintiffs allege that Demurring Party’s actions was a proximate cause of Decedent’s death. (Id. ¶ 42.) Plaintiffs allege damages. (Id. ¶ 43.)

Plaintiffs have sufficiently pled facts to allege claims for negligence and negligent hiring.

Fourth Cause of Action for Battery

Demurring Party argues that Plaintiffs’ fourth cause of action fails because vicarious liability is not a separate cause of action.

“The elements of civil battery are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff's person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526-27.) “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)

Demurring Party’s arguments are not well founded and are not supported by any relevant authority. Demurring Party’s arguments are rejected.

Fifth Cause of Action for Wrongful Death

Demurring Party argues that Plaintiffs’ fifth cause of action is uncertain.

“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

             Plaintiffs allege they were the lawful parents of Decedent and are the sole surviving heirs of Decedent. (Complaint ¶¶ 3 and 51.) Plaintiffs also allege that Demurring Party’s negligent hiring of Lawson was a proximate and substantial cause of Decedent’s death. (Id. ¶¶ 42-43.) Plaintiffs also allege damages. (Id. ¶¶ 43 and 49.)

            Plaintiffs have sufficiently facts to allege a claim for wrongful death.

            Motion to Strike Punitive Damages

            Demurring Party moves to strike Plaintiffs’ prayer for punitive damages against it.

            Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a). A plaintiff seeking punitive damages “must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. [Citation.] Punitive damages may not be pleaded generally.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)

            “[U]nder the respondeat superior doctrine, the employer is not liable for punitive damages absent fault or misconduct on the employer's part.” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261.) “The requisite employer misconduct is now specified in subdivision (b) of section 3294, which states that an employer may be liable for punitive damages when ‘ “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....” ’ ” (Id.  at p. 1262.)

            Plaintiffs allege that Demurring Party knew Lawson had a criminal record including an arrest for assault, and therefore he possessed a propensity for violence prior being hired. (Complaint ¶¶ 38-40.)  However, evidence that a person was simply arrested (for any crime) is inadmissible to prove character or a propensity to commit violence, (See Evidence Code 1101) and the Plaintiffs do not cite what else comprises his ‘criminal record’.  Are there actual convictions?  Is so, for what crimes?  Crimes of violence?  Property crimes?  Drug use?  The complaint is silent to this question.  As stated above, to justify an award of punitive damages the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his employee’s conduct, and that he willfully and deliberately failed to avoid those consequences. Plaintiffs’ current allegations are insufficient.

CONCLUSION

            Demurring Party’s demurrer is OVERRULED.

            Demurring Party’s motion to strike is GRANTED.  Plaintiff has 30 days leave to amend.

            Moving Party to give notice.

Dated:   May 4, 2023                                      ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org