Judge: John J. Kralik, Case: 23BBCV00658, Date: 2024-01-12 Tentative Ruling
Case Number: 23BBCV00658 Hearing Date: January 12, 2024 Dept: NCB
North
Central District
|
elias reidy, Plaintiff, v. eau di nil
marketing & events, inc., et al.,
Defendants. |
Case
No.: 23BBCV00658 Hearing Date: January 12, 2024 [TENTATIVE]
order RE: demurrer/motion to strike |
BACKGROUND
A. Allegations
Plaintiff Elias
Reidy (“Plaintiff”) alleges that he was an employee of Defendant Eau Di Nil
Marketing & Events Inc. (“EDN”), a subsidiary of Defendant Crop King Seeds
(“CKS”), and Defendant Landra Deloach (“Deloach”). Plaintiff alleges that on March 25, 2021 at
approximately 10:30 a.m., he was placing cannabis seeds in jars at the EDN
factory and, while leaning over his work station, cupping a jar and seeds in
both hands, he suddenly felt someone hit him on the right side of the face with
great force. Plaintiff alleges that he
was struck with such force that he fell into the left and right side of a cage
area before stumbling into the garage area.
Plaintiff alleges that when he looked up, he saw his coworker Defendant
Isaiah Vega (“Vega”) standing right behind him, preparing for another
attack. Plaintiff alleges that Vega was
wearing large, sharp, metallic rings that caused damage to Plaintiff’s face. Plaintiff alleges that Vega shouted numerous
homophobic, racist, and sexual epithets at him.
He alleges that he pleaded for help, but manager/owner Deloach failed to
offer any help or medical assistance.
The
complaint, filed March 22, 2023, alleges causes of action for: (1) negligence
against all Defendants; (2) premises liability against CKS, EDN, and Deloach;
(3) assault and battery against CKS, EDN, and Vega; (4) statutory negligence
against all Defendants; (5) vicarious liability against CKS, EDN, and Deloach;
(6) negligent hiring, supervision, or retention of employee against CKS, EDN,
and Deloach; (7) negligence per se against all Defendants; (8) wrongful
termination in violation of public policy against CKS, EDN, and Deloach; (9)
IIED against all Defendants; and (10) NIED against all Defendants.
B. Motion
on Calendar
On
October 27, 2023, EDN and Deloach filed a demurrer and motion to strike document
to the complaint. The demurrer and
motion to strike were filed in a single document.
On November 13,
2023, Plaintiff filed an opposition brief.
On January 3,
2024, EDN and Deloach filed a reply brief.
DISCUSSION
EDN and Deloach
demur to the 1st to 10th causes of action alleged in the complaint
on the ground that they fail to state sufficient facts and are uncertain. They also move to strike Plaintiff’s request for punitive
damages.
A.
1st cause of action for Negligence
The elements of a negligence cause of
action are “duty, breach of duty, proximate cause, and damages.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
In the 1st cause of action,
Plaintiff alleges that on March 25, 2021, Plaintiff was an employee of EDN, a
subsidiary of CKS, and Deloach. (Compl.,
¶12.) He alleges that while he was
working, his coworker Vega struck him with his fist, was preparing for another
attack, and shouted numerous homophobic, racist, and sexual
epithets at him. (Id.,
¶¶13-14.)
EDN and Deloach
demur to the 1st cause of action, arguing that it fails to allege
sufficient facts to show that Deloach knew or should have known of any past
similar violent crimes of Vega or that they had received any complaints
regarding Vega.
The allegations
of the negligence cause of action are sparse.
They fail to allege facts regarding EDN and Deloach’s negligence other
than that they were Plaintiff’s employer.
As such, it is unclear how this cause of action is any different from a
cause of action from the negligent hiring, supervision, and retention cause of
action. Additional facts should be
alleged to describe EDN and Deloach’s negligent conduct that caused Plaintiff’s
injury.
The demurrer to the 1st cause
of action is sustained with leave to amend.
B.
2nd cause of action for Premises Liability
The elements of a premises liability claim
and negligence claim are the same: a legal duty of care, breach of that duty,
and proximate cause resulting in injury.
(Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.) “Those who own,
possess, or control property generally have a duty to exercise ordinary care in
managing the property in order to avoid exposing others to an unreasonable risk
of harm.” (Id.) “A
proprietor of premises is not the insurer of the safety of persons on those
premises. His duty to control the acts of third persons is a duty of reasonable
care to protect against known or reasonably foreseeable risks. He is not
required to take precautions against attacks by third persons which he has no
reason to anticipate.” (7735
Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901,
905.)
In the 2nd cause of action, Plaintiff
alleges that Defendants owned, operated, controlled, or were responsible for
the subject property on March 25, 2021 and should have foreseen that Plaintiff
would be exposed to an unreasonable risk of harm. (Compl., ¶19.) Plaintiff alleges that Defendants owed a duty
to exercise reasonable and ordinary care in the use, inspection, maintenance,
and/or management of the subject property to avoid exposing persons like
Plaintiff to an unreasonable risk of harm.
(Id., ¶20.) Plaintiff
alleges that Defendants negligently, carelessly, and recklessly owned,
controlled, managed, inspected, and maintained the subject property, so as to
proximately cause injuries to Plaintiff.
(Id., ¶21.)
EDN and Deloach demur to the 2nd
cause of action, arguing that Plaintiff only alleges that Defendants
negligently owned the property but do not allege further facts to justify a
premises liability claim.
The complaint alleges in the general
introductory facts that Plaintiff was attacked by Vega while he was on EDN and
Deloach’s premises. (See Compl. at
pp.2-4.) However, these allegations are
not included in the 2nd cause of action. In order to clarify the pleading so that
Defendants are on notice of what specific allegations are being alleged against
them in the 2nd cause of action, Plaintiff should allege facts
regarding the attack in the 2nd cause of action (as well as any
other premises liability claims) upon amendment. In addition, for the “Introduction” facts in
the complaint on pages 2-4, Plaintiff should number the allegations with
consecutive paragraph numbers so that they may be easily referenced and cited.
The demurrer to the 2nd cause
of action is sustained with leave to amend.
C.
3rd cause of action for Assault and Battery
“The elements of a cause of action for battery are: (1) the
defendant touched the plaintiff, or caused the plaintiff to be touched, with
the intent to harm or offend the plaintiff; (2) the plaintiff did not consent
to the touching; (3) the plaintiff was harmed or offended by the defendant's
conduct; and (4) a reasonable person in the plaintiff's position would have
been offended by the touching.” (Carlsen v.
Koivumaki (2014)
227 Cal.App.4th 879, 890.) “The elements of a cause of action
for assault are: (1) the defendant acted with intent to cause harmful or
offensive contact, or threatened to touch the plaintiff in a harmful or
offensive manner; (2) the plaintiff reasonably believed he was about to be touched
in a harmful or offensive manner or it reasonably appeared to the plaintiff
that the defendant was about to carry out the threat; (3) the plaintiff did not
consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the
defendant's conduct was a substantial factor in causing the plaintiff's
harm.” (Id.)
In the 3rd cause of action,
Plaintiff alleges that he was an employee of EDN and Deloach. (Compl., ¶25.) He alleges that Vega attacked him, prepared
for another attack, and shouted at him.
(Id., ¶¶26-27.) The 3rd
cause of action is directed against EDN, CKS, and Vega.
The allegations of the 3rd
cause of action fail to allege facts showing how EDN engaged in assault and
battery. EDN appears to be a corporate
entity. (See Compl. at p.1.) Further, the complaint fails to include any
facts showing that EDN intentionally touched Plaintiff with intent to cause
Plaintiff harm or that it acted with an intent to cause Plaintiff a harmful or
offensive contact.
In opposition, Plaintiff provides the law
regarding the elements of assault and battery but provides no argument in
response to Defendants’ demurrer arguments on the 3rd cause of
action. As Plaintiff has not offered any
argument in response to the demurrer on this cause of action or showed how,
upon amendment, he can add facts to allege assault and battery against EDN, the
demurrer to the 3rd cause of action is sustained without leave to
amend as alleged against EDN.
D.
4th cause of action for Statutory
Negligence
In the 4th cause of action,
Plaintiff alleges that that unfair competition law pursuant to Business &
Professions Code, § 17200 et seq. protects consumers and
competitors. (Compl., ¶31.) Plaintiff alleges that Defendants’ acts and
practices constitute unlawful or unfair business practices. (Id., ¶32.) Plaintiff alleges that Defendants’ practices
against Plaintiff caused him to suffer damages in a sum not yet ascertained and
that he seeks restitution. (Id.,
¶¶34-35.)
EDN and Deloach argue that this cause of
action lacks merit because Plaintiff has not identified what law Defendants
violated or how this cause of action applies to the facts of this case. Based
on the Court’s reading of the complaint, the complaint appears to be about an
attack that occurred on EDN and Deloach’s premises. There are no allegations that Plaintiff was a
consumer that was subjected to Defendants’ unfair, unlawful, or fraudulent business
practices that caused him damages as a consumer. Rather, he alleges he was an employee that
was attacked on the premises.
In opposition, Plaintiff provides
the elements of a negligence claim in a single sentence but does not make any
further argument about negligence (or “statutory negligence”), nor make any
arguments about unfair competition law. It
appears unlikely that Plaintiff will be able to amend this cause of action to
state a viable claim for unfair competition or “statutory negligence.” As such, the demurrer to the 4th
cause of action is sustained without leave to amend as to EDN and Deloach.
E.
5th cause of action for Vicarious Liability
“[A]n 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.) An employer may be
vicariously liable for an employee’s torts if the employee’s act was an
“outgrowth” of his employment, inherent in the working environment, typical of
or broadly incidental to the employer’s business, or, in a general way,
foreseeable from the employee’s duties.
(Id. at 298.) The employer’s liability extends beyond its
actual or possible control of the employee, and includes risks inherent to or
created by the employee. (Purton v. Marriott Int’l, Inc. (2013)
218 Cal.App.4th 499, 505.)
In the 5th cause of action,
Plaintiff alleges that on March 25, 2021, Vega was an agent or employee of EDN,
CKS, and Deloach. (Compl., ¶39.) He alleges that Vega was acting within the
scope of his agency/employment when he harmed Plaintiff, such that they are
responsible for Plaintiff’s injury. (Id.,
¶¶40-41.)
EDN and Deloach argue that Plaintiff has
not alleged sufficient facts showing that Vega was acting within the scope of
his employment at the time of the altercation.
While the complaint alleges that Vega was an agent or employee of EDN,
CKS, and Deloach. There are no allegations from which the Court could infer
that employment in a marijuana retailer inherently increases the risk of
violence by employees. Without more, the allegations for vicarious liability
are lacking. As this is the first
attempt at the pleading, the Court will allow Plaintiff leave to amend the 5th
cause of action to add facts against EDN and Deloach.
The demurrer to the 5th cause
of action is sustained with leave to amend.
F.
6th cause of action for Negligent Hiring,
Supervision, or Retention of Employee
California law permits Plaintiff to plead
that an employer is liable to him for negligently hiring, supervising, or
retaining an unfit employee. (Doe
v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) The employer’s liability is based upon facts
showing that the employer knew or should have known that hiring the employee
created a particular risk or hazard and that particular harm materializes. (Id.)
In the 6th cause of action,
Plaintiff alleges that EDN, CKS, and Deloach hired Vega, but that he was unfit
or incompetent to perform the work for which he was hired. (Compl., ¶¶46-47.) He alleges that EDN and CKS knew or should
have known that Vegas was unfit or incompetent and that this created a
particular risk to others and did cause harm to Plaintiff. (Id., ¶¶48-49.)
At most, Plaintiff alleges that Vega
was unfit or incompetent to perform the work he was hired to perform—i.e., the
business of EDN, CKS, and Deloach regarding cannabis. There are no allegations regarding his unfitness
or incompetence that would have proximately caused Plaintiff’s injury. There are also no allegations that EDN and
CKS knew or should have known of facts that hiring Vega would have created a
particular risk or hazard, such as violent propensities.
For these reasons, the demurrer to
the 6th cause of action is sustained with leave to amend.
G.
7th cause of action for Negligence Per Se
“[T]he doctrine of
negligence per se is not a separate cause of action, but creates an evidentiary
presumption that affects the standard of care in a cause of action for
negligence.” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353 at
fn.2; see also Turner v. Seterus, Inc.
(2018) 27 Cal.App.5th 516, 543. Evidence
Code § 669 states:
(a) The failure of a person to exercise
due care is presumed if:
(1) He violated a statute, ordinance, or
regulation of a public entity;
(2) The violation proximately caused death
or injury to person or property;
(3) The death or injury resulted from an
occurrence of the nature which the statute, ordinance, or regulation was
designed to prevent; and
(4) The person suffering the death or the
injury to his person or property was one of the class of persons for whose
protection the statute, ordinance, or regulation was adopted.
(b) This presumption may be rebutted by
proof that:
(1) The person violating the statute,
ordinance, or regulation did what might reasonably be expected of a person of
ordinary prudence, acting under similar circumstances, who desired to comply
with the law; or
(2) The person violating the statute,
ordinance, or regulation was a child and exercised the degree of care
ordinarily exercised by persons of his maturity, intelligence, and capacity
under similar circumstances, but the presumption may not be rebutted by such
proof if the violation occurred in the course of an activity normally engaged
in only by adults and requiring adult qualifications.
(Evid.
Code, § 669.)
This is not an independent cause of
action, but an evidentiary presumption. If
Plaintiff seeks to allege negligence per se, he should do so in connection with
his 1st cause of action for negligence as an alternate theory. However, upon the Court’s review of the
allegations of the 7th cause of action, it appears unlikely that
Plaintiff has a claim for negligence per se against EDN and Deloach. However, as this is the first attempt at the
pleading, the Court will allow Plaintiff limited leave to amend the 7th
cause of action for negligence per se to incorporate it into the 1st
cause of action for negligence and to add facts showing that the presumption
exists.
The demurrer to the 7th cause
of action is sustained with leave to amend as limited herein.
H.
8th cause of action for Wrongful
Termination in Violation of Public Policy
“The elements of a claim for wrongful discharge in violation
of public policy are (1) an employer-employee relationship, (2) the employer
terminated the plaintiff's employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the
plaintiff harm.” (Yau
v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th
144, 154; see also CACI 2430.) The public policy implicated “must
be: (1) delineated in either constitutional or statutory provisions; (2)
'public' in the sense that it 'inures to the benefit of the public' rather than
serving merely the interests of the individual; (3) well established at the
time of the discharge; and (4) substantial and fundamental.” (City of
Moorpark v. Superior Court (1998) 18
Cal.4th 1143, 1159.)
In the 8th cause of action,
Plaintiff alleges that on March 25, 2021, EDN, CKS, and Deloach fired Plaintiff
in retaliation of him complaining of unsafe working conditions and requesting
medical leave and treatment following battery at work by Vega during workplace hours. (Compl., ¶66.) Plaintiff alleges that they fired him in
retaliation for making a police report regarding the attack and failed to
provide him with a reasonable accommodation in accordance with the ADA based on
his injuries and disabilities sustained on the job. (Id., ¶¶67-68.) Plaintiff alleges he
was wrongfully terminated. (Id.,
¶69.)
EDN and Deloach argue that Plaintiff has
not alleged the elements of a substantial and fundamental public interest that
was violated at the time of discharge.
At most, Plaintiff alleges that he was terminated for complaining about
unsafe working conditions and requesting medical leave after the attack. It is unclear if the unsafe working condition
was the single event of Vega’s attack or if there was any other prior unsafe
working condition present at the premises.
Also, Plaintiff has not alleged what “public policy” was at issue that
was violated at the time of termination.
Nevertheless, the allegation that
Plaintiff’s termination constituted retaliation for making a police report
(reporting such allegations is a Constitutional right), on its own adequately
alleges a termination in violation of public policy. While one can certainly
argue that the cause of action should be supported by further facts regarding
the other termination theories, the demurrer to the 8th cause of
action is overruled.
I.
9th cause of action for IIED
The elements of intentional infliction of
emotional distress are: (1) outrageous conduct by the defendant; (2) the
defendant’s intention of causing or reckless disregard of the probability of
causing emotional distress; (3) the plaintiff suffered severe or extreme
emotional distress; and (4) the plaintiff’s injuries were actually and
proximately caused by the defendant’s outrageous conduct. (Vasquez
v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,
832.) In order to avoid a demurrer, the
plaintiff must allege with great specificity, the acts which she believes are
so extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Id.)
Conduct to be outrageous must be so
extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be
of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind. (Id.)
“Although emotional distress may consist of
any highly unpleasant mental reaction such as fright, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment or worry [citation],
to make out a claim, the plaintiff must prove that emotional distress was
severe and not trivial or transient.” (Wong v. Tai Jing (2010)
189 Cal.App.4th 1354, 1376.) Such distress must be “of such
substantial quality or enduring quality that no reasonable person in civilized
society should be expected to endure it.” (Potter v. Firestone Tire
& Rubber Co. (1993) 6 Cal.4th 965, 1004.)
In the 9th cause of
action, Plaintiff alleges that Defendants owed him a duty of care not to cause
him emotional distress and that they knowingly harassed Plaintiff based on his
disability of sex and gender. (Compl.,
¶¶74-75.) Plaintiff alleges that
Defendants were aware of treating him in this manner deprived him of his livelihood. (Id., ¶76.) He alleges that Defendants’ discriminatory,
harassing, and retaliatory actions constituted severe and outrageous misconduct
and caused him to suffer emotional distress.
(Id., ¶78.)
The complaint fails to allege
specific facts about how EDN and Deloach engaged in extreme and outrageous
conduct against Plaintiff that caused him to suffer severe emotional
distress. As currently alleged, the
facts generally allege that they owed him a duty and caused him emotional
distress, but specific facts on what actions they engaged in and how such
actions caused him to suffer severe emotional distress have not been alleged.
The demurrer to the 9th cause
of action is sustained with leave to amend.
J.
10th cause of action for NIED
An NIED claim is not an independent tort,
but the tort of negligence. (McMahon v. Craig (2009) 176 Cal.App.4th
1502, 1509.) A cause of action for NIED
may be brought under two general instances: (1) where Plaintiff is a bystander
and seeks to recover damages as percipient witness to the injury of another; or
(2) where Plaintiff is a direct victim in that the emotional distress damages
result from a duty owed the plaintiff that is assumed by defendant or imposed
on the defendant as a matter of law, or that arises out of the relationship
between the two. (Id. at 1509-10.) “A
defendant may be liable in tort for negligently inflicting emotional distress
on persons to whom the defendant owes a duty of care. That duty can have three alternative origins:
(1) a duty imposed on the defendant by law, (2) a duty assumed by the
defendant, or (3) a duty arising out of a preexisting relationship between
plaintiff and defendant.” (Benson v. Superior Court (2010) 185
Cal.App.4th 1179, 1187.)
The 10th cause of action
alleges similar facts as the IIED cause of action. (See Compl., ¶¶85-88.) However, for the same reasons as discussed
above, it is unclear what actions Defendants took that breached their duties
against Plaintiff for an NIED claim. As
such, the demurrer to the 10th cause of action is sustained with
leave to amend.
K.
Motion to strike allegations for Punitive Damages
EDN and Deloach
move to strike allegations for punitive damages in the complaint. Punitive damages are sought in connection
with the 8th, 9th, and 10th causes of
action. (Compl., ¶¶71, 82, 90.)
In light of the ruling on the demurrer to
the 9th and 10th causes of action, the motion to strike
the allegations for punitive damages with respect to the 9th and 10th
causes of action is moot.
A complaint including a request for
punitive damages must include allegations showing that the plaintiff is
entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
1255.) A claim for punitive damages cannot be pleaded generally and
allegations that a defendant acted "with oppression, fraud and
malice" toward plaintiff are insufficient legal conclusions to show that
the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73
Cal.App.3d 864, 872.) Specific factual allegations are required to
support a claim for punitive damages. (Id.)
Civil Code § 3294
authorizes a plaintiff to obtain an award of punitive damages when there is
clear and convincing evidence that the defendant engaged in malice, oppression,
or fraud. Section 3294(c) defines the terms in the following manner:
(1)
"Malice" means conduct which is
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.
(2)
"Oppression" means despicable
conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person's rights.
(3)
"Fraud" means an intentional
misrepresentation, deceit, or concealment of a material fact known to the
defendant with the intention on the part of the defendant of thereby depriving
a person of property or legal rights or otherwise causing injury.
With respect to a corporate employer, section 3294(b) requires that 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.
In the 8th cause of action for
wrongful termination in violation of public policy, Plaintiff alleges that Defendants’
actions were taken by and through their managing agents, officers, or directors
and that such conduct was engaged in through a deliberate, cold, callous,
fraudulent, and intentional manner in order to injure and damage Plaintiff or
in conscious disregard to his rights.
(Compl., ¶71.) The allegations of
the 8th cause of action are summarized more fully above in the
demurrer analysis.
The Court finds that the allegations are
conclusory and lack the specificity and particularity required to allege
punitive damages. While Plaintiff has
essentially alleged the words of the statute, more facts are required to allege
punitive damages. As such, the motion to
strike is granted with leave to amend.
CONCLUSION AND ORDER
Defendants
Eau Di Nil Marketing & Events Inc. and Landra Deloach’s demurrer to the
complaint is sustained with 20 days leave to amend as to the 1st, 2nd,
5th, 6th, 7th, 9th, and 10th
causes of action; sustained without leave to amend as to the 3rd and
4th causes of action; and overruled as to the 8th cause
of action.
The motion to strike the allegations
for punitive damages is granted with 20 days leave to amend.
Defendants shall
provide notice of this order.
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DATED:
January 12, 2024 ___________________________
John
Kralik
Judge
of the Superior Court