Judge: Kenneth J. Medel, Case: 37-2022-00038064-CU-PO-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00038064-CU-PO-CTL ABDULLAH VS LA VISTA ENTERPRISES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/24/2023

Defendant La Vista Enterprises, Inc.'s Demurrer is OVERRULED. Plaintiff has sued for false imprisonment, false imprisonment with intent to capture physical impression (Civ. Code §1708.8), intentional infliction of emotional distress (IIED), and negligent hiring, training, and supervision after a visit to her father's grave.

Ms. Abdullah's First Amended Complaint alleges that the groundskeeper (Pablo Bermudez) refused to let her leave the cemetery, began recording her with his phone, and either personally or through others, scratched her father's headstone and took a flag, flowers, balloons, rocks, sod, a candle, and two in-ground vases from her father's grave.

La Vista generally and specially demurs to the first three of four causes of action of Ms. Abdullah's FAC: false imprisonment, false imprisonment with intent to capture physical impression, and IIED. (There is only a general demurrer in the Memo of Ps&As) First Cause of Action (False Imprisonment) – OVERRULED.

False imprisonment 'requires some restraint of the person and that he be...compelled to stay where he does not want to remain, or compelled to go where he does not wish to go; and that the person be restrained of his liberty without sufficient complaint or authority.' Collins v. Cnty. of Los Angeles, 241 Cal. App. 2d 451, 459-460 (1966). '[F]orce or the threat of force are not the only means by which...false imprisonment can be achieved.' Scofield, 45 Cal. App. 4th at 1002.

La Vista first argues that the length of time alleged – less than 10 minutes – is inadequate for false imprisonment.

The FAC alleges Ms. Abdullah 'returned to her car and headed for the exit a little after 5:00 p.m.' (FAC, ¶9), that Mr. Bermudez 'refused to open the gate' (¶11), that 'the time was now approximately 5:15 p.m.' (id.), that '[s]he called 911' (id.), and that '[h]e finally opened the gate at approximately 5:25 p.m.' (Id.) Cases have held that the length of confinement must be for 'some appreciable time, however short.' Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994). There is not a set time. Ms. Abdullah's FAC alleges confinement. Whether the time is appreciable is beyond the pleadings.

La Vista argues that Ms. Abdullah's FAC 'do[es] not state who closed the gate' or 'how it was closed when she was following others who were leaving.' Regardless, Ms. Abdullah's FAC alleges that Mr.

Bermudez restrained her. She alleges that she 'asked Mr. Bermudez to open the gate so she could leave,' that '[h]e refused to open the gate,' that '[s]he repeatedly demanded that he open the gate' and had to resort to calling 911 at 5:15 p.m., and that '[h]e finally opened the gate at 5:25 p.m.' (FAC, ¶11.) She thus alleges that he used a physical barrier, a closed gate, to compel her to stay where she did not want to remain, the cemetery.

Defendant also argues that the FAC 'ignore[s] Defendant's authority [to arrest,] as provided by statute' – namely, Health and Safety Code section 8325, which provides: '[p]ersons designated by a cemetery Calendar No.: Event ID:  TENTATIVE RULINGS

2964652  45 CASE NUMBER: CASE TITLE:  ABDULLAH VS LA VISTA ENTERPRISES INC [IMAGED]  37-2022-00038064-CU-PO-CTL authority have the powers of arrest as provided in Section 830.7 of the Penal Code for the purpose of maintaining order, enforcing the rules and regulations of the cemetery association, the laws of the state, and the ordinances of the city or county, within the cemetery over which he has charge, and within such radius as may be necessary to protect the cemetery property.' However, this defense is not necessarily applicable based on the allegations of the Complaint. Penal Code section 830.7 provides that '[p]ersons designated by a cemetery authority' under Health and Safety Code section 8325 'are not peace officers but may exercise the powers of arrest...if they successfully complete a course in the exercise of those powers pursuant to Section 832' (emphasis added). Penal Code section 832 provides that '[e]very person described in this chapter as a peace officer shall satisfactorily complete an introductory training course prescribed by the Commission on Peace Officer Standards and Training [POST]' (Pen. Code §832(a)) and 'shall not have the powers of a peace officer until they satisfactorily complete the course.' §832(c) Second Cause of Action (False Imprisonment with Intent to Capture Physical Impression) - OVERRULED Section 1708.7(c) provides that '[a]n assault or false imprisonment committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).' Section 1708.8(e), in turn, provides: 'A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable...' for damages. Plaintiff alleges that she 'asked Mr. Bermudez to open the gate so she could leave,' that '[h]e refused to open the gate,' that '[s]he repeatedly demanded that he open the gate' and had to resort to calling 911 at 5:15 p.m., and that '[h]e finally opened the gate at 5:25 p.m.' and that La Vista CEO/Secretary/CFO Micaela Polanco 'authorized or ratified Mr. Bermudez's unlawful detention and recording' or directed, solicited, actually induced, and/or actually caused him to detain and record' Ms.

Abdullah. (FAC ¶¶11, 15.) For purposes of demurrer, the elements are pled.

Third Cause of Action (Intentional Infliction of Emotional Distress) -OVERRULED Whether the conduct alleged is extreme and outrageous conduct is a question beyond the pleadings.

Punitives The Motion to Strike is DENIED. For purposes of pleading, facts supporting punitive damages have been alleged.

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