Judge: Kerry Bensinger, Case: 20STCV30438, Date: 2023-02-10 Tentative Ruling

Case Number: 20STCV30438    Hearing Date: February 10, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On August 11, 2020, Plaintiff Anthony Adefuye (“Plaintiff”) filed this action against Defendant Cabo Cantina LLC alleging he sustained injuries when he was attacked by a security guard. On September 29, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”) asserting causes of action for negligence, assault and battery, intentional infliction of emotional distress (“IIED”), and premises liability against Cabo Cantina, Southwest Traffic Corp., CC HLWD LLC, RMG Sunset Inc., and Michael Bezerra (“Bezerra”).

On October 15, 2021, Plaintiff amended the complaint to add Defendant Sunset 26 LLC (“Sunset 26”) as Doe 8. On November 14, 2022, Plaintiff amended the complaint to add Defendant Milton Zampelli (“Zampelli”) as Doe 10.

On December 23, 2022, Sunset 26 and Zampelli filed a demurrer to the SAC arguing that all causes of action fail to state facts sufficient to constitute a cause of action and are uncertain.

Additionally, Sunset 26 and Zampelli argue that the fourth cause of action fails because the Court previously sustained Defendant Bezerra’s demurrer as to this cause of action on November 23, 2022.  

All Defendants have filed a motion arguing that this cause of action should be dismissed pursuant to Code of Civil Procedure section 581(f)(2) because Plaintiff never amended the complaint.

II.          LEGAL STANDARD

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

III.        DISCUSSION

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)    

Counsel submits a declaration stating that on or about December 23, 2022, he attempted to meet and confer with Plaintiff on the telephone, but Plaintiff refused to amend the complaint. (Roshan-Zamir Decl. ¶ 4.) The meet and confer requirement has been satisfied.

First Cause of Action: Negligence

          Defendants Zampelli and Sunset 26 argue that Plaintiff fails to allege any facts supporting negligence against Zampelli and Sunset 26. Additionally, Zampelli and Sunset 26 argue that there are only boilerplate allegations that are vague and ambiguous.

          In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

          Plaintiff sufficiently alleges a cause of action for negligence in the SAC by alleging that Zampelli and Sunset 26 (previously Does 8 and 10) negligently hired, supervised, retained, or trained the security guard who attacked him and caused his injury. (SAC, ¶¶ 22, 25, 38.) Plaintiff also alleges that the security guard was acting within the course and scope of employment with Zampelli and Sunset 26 and that they ratified and adopted the security guard’s attack. (SAC, ¶¶ 24, 27, 30, 39, 40.) Negligence may be plead in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

The demurrer to the First Cause of Action is OVERRULED.

Second Cause of Action: Assault and Battery

          Zampelli and Sunset 26 argue that the second cause of action stating that there are no facts as to why they are being named in the “boilerplate complaint.” They argue that the allegations are vague and ambiguous.

          Plaintiff alleges that the security guard assaulted him and intentionally subjected him to name-calling before attacking him, and that Zampelli and Sunset 26 (previously Does 8 and 10) ratified and adopted the security guard’s actions. (SAC, ¶¶ 47, 48.) This is sufficient to state a cause of action for assault.

          The demurrer to the second cause of action is OVERRULED.

Third Cause of Action: IIED

          Zampelli and Sunset 26 argue that Plaintiff does not state a claim for IIED because the allegations are insufficient to show outrageous conduct or the requisite intent. Zampelli and Sunset 26 argue that Plaintiff has failed to plead this cause of action with particularity as required.

          “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

          At this stage, Plaintiff has sufficiently stated a cause of action for IIED. Plaintiff alleges that he was walking away from the premises when Defendant’s employee followed Plaintiff yelling and calling him names and then proceeded to violently and aggressively attack and assault Plaintiff. (SAC ¶ 52.) The SAC alleges that Zampelli and Sunset 26 LLC (previously Does 8 and 10) ratified and adopted these acts as their own, and intentionally acted to harm or injure Plaintiff physically and emotionally. (SAC ¶ 53.) Zampelli and Sunset 26 offer no authority for their assertion that IIED must be pled with “particularity.” (Demurrer p. 6.)

          The demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action: Premises Liability

          Defendants Zampelli and Sunset 26 argue that this cause of action fails because Plaintiff does not allege that the attack occurred on their property or that a dangerous condition existed on the property.

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

The SAC alleges that as Plaintiff walked away, the security guard “left his post at Cabo Cantina” and followed Plaintiff to the restaurant next door before attacking him. (SAC ¶ 17.) The SAC does not allege that any Defendant owned the restaurant or the premises outside of the restaurant.

The demurrer to the fourth cause of action is SUSTAINED with leave to amend.

Motion to Dismiss Fourth Cause of Action

Defendant Bezerra’s demurrer to the fourth cause of action was previously sustained with leave to amend on November 23, 2022. The Court gave Plaintiff 20 days’ leave to amend. However, Plaintiff did not file a Third Amended Complaint. For this reason, Defendants Cabo Cantina LLC, Michael Bezerra, Milton Zampelli, Sunset 26 LLC, CC HLWD LLC, and RMG Sunest, Inc. move for an order dismissing the fourth cause of action pursuant to Code of Civil Procedure section 581(f)(2).

Code of Civil Procedure section 581(f) states that “The court may dismiss the complaint as to that defendant when:… (2) …after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal.”

Plaintiff has filed an opposition that he “does not oppose the motion per se.” However, he asks the Court to dismiss the Premises Liability cause of action without prejudice.

Defendants do not cite to a proposition that allows the court to dismiss this cause of action as to any Defendant except Defendant Bezerra. As the Court sustained only Defendant Bezerra’s demurrer with leave to amend, only Defendant Bezerra can make a motion under this statute.

Defendants’ motion does not request the cause of action be dismissed with or without prejudice. However, dismissals under section 581(f) are typically with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 330; see Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 76 (“a plaintiff's right to voluntarily dismiss his or her action under section 581 is cut off… when a general demurrer is sustained with leave to amend and the plaintiff fails to amend within the time allowed by the court, even if the trial court has not yet entered a judgment of dismissal on the sustained demurrer”).)

Thus, the Court GRANTS the motion and dismisses the fourth cause of action for premises liability with prejudice as to Defendant Bezerra only.

However, the Court DENIES the motion as to the other Defendants.

IV.         CONCLUSION

Defendants Zampelli and Sunset 26’s demurrer to the first, second, and third causes of action is OVERRULED. Defendants Zampelli and Sunset 26’s demurrer to the fourth cause of action is SUSTAINED with leave to amend.

 The Court GRANTS the motion to dismiss the fourth cause of action with prejudice as to Defendant Bezerra only.

The Court DENIES the motion to dismiss the fourth cause of action as to Defendants Cabo Cantina LLC, Milton Zampelli, Sunset 26 LLC, CC HLWD LLC, and RMG Sunset.

Moving parties to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

        Dated this 10^th day of February 2023