Judge: Kerry Bensinger, Case: 22STCV12459, Date: 2023-01-10 Tentative Ruling

Case Number: 22STCV12459    Hearing Date: January 10, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On April 13, 2022, plaintiff Armen Saribekian (“Plaintiff”) filed this action against defendant Bank of America, N.A. (“Defendant”) (erroneously sued as “Bank of America Corporation”) and Does 1 to 100 asserting causes of action for: (1) general negligence, (2) premises liability, (3) assault, (4) negligent hiring, training, supervision, and retention of employees, and (5) intentional infliction of emotional distress (“IIED”). 

          On November 28, 2022, Plaintiff amended the Complaint to add Loomis Armored US, LLC as Doe 1. 

          Plaintiff alleges that on or about November 20, 2020, at or between 12:00 p.m. and 3:00 p.m., Plaintiff was walking towards Defendant’s ATM machine when “a security guard, without any explanation or provocation, intentionally, viciously and aggressively began to yell at Plaintiff and without a cause pointed a gun at him.”  (Compl., ¶ 13.) 

On December 12, 2022, Defendant filed this demurrer and motion to strike.  Defendant demurs to the causes of action for general negligence, premises liability, assault, and IIED on the grounds that Plaintiff fails to state sufficient facts.  Defendant moves to strike Plaintiff’s requests for punitive and exemplary damages as well as attorneys’ fees.  ‘

On December 28, 2022, Plaintiff filed opposition briefs to the demurrer and motion to strike.  On January 3, 2023, Defendant filed a combined reply brief. 

II.      LEGAL STANDARDS

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).) 

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., § 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); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  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.)

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

A.   Meet and Confer

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).)  

          Defense counsel, A. Brandon Bassir, declares that he met and conferred by email and telephone with Plaintiff’s counsel before filing this demurrer and motion to strike.  The meet and confer requirement is satisfied. 

B.   Demurrer

1.   Vicarious Liability

Defendant demurs to Plaintiff’s first, third, and fifth causes of action on the grounds that there are insufficient facts alleged to impose vicarious liability because the security guard’s actions were not committed within the course and scope of his employment. 

There are two tests to determine whether a defendant acted within their course and scope of employment.  The first test is the nexus test.  Unless the act was otherwise foreseeable by the employer, there must be some “nexus” between the employment and the act in question (required by employer or “incident” to employee's duties).  (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 582; Crouch v. Trinity Christian Ctr. of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015; Vogt v. Herron Const., Inc. (2011) 200 Cal.App.4th 643, 649.)  The second test is the “foreseeability” test.  The “foreseeability” test is met if, in the context of the particular enterprise, the employee's conduct is not so “unusual or startling” that it would seem “unfair” to factor the liability into the employer's cost of doing business.  (See Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal.4th 291, 299; Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 482. 

Defendant argues that the security guard was allegedly hired to provide security services to its patrons; therefore, threatening Plaintiff is not related to the guard’s intended role of providing security.  In opposition, Plaintiff argues that the security guard’s acts were incidental to his duties as a security guard because security guards may brandish their weapons in the course of providing security, even if the act itself was unreasonable.   

The Court agrees that for pleading purposes the security guard was acting within the scope of his duties or a logical outgrowth therefrom.  There is no indication that this assault was for the employee’s own purposes or the result of a personal quarrel.  (e.g. Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.4d 947, 957.)  A logical outgrowth of a security guard’s duty to surveil and protect the premises is the potential for excessive force, and excessive force is an inherent risk in the work of a security guard.  

2.   Second Cause of Action: Premises Liability

Defendant demurs to Plaintiff’s premises liability claim on the grounds that Plaintiff does not plead facts showing actual or constructive knowledge of the security guard’s unprovoked aggressiveness. Plaintiff alleges that Defendant was negligent in the selection, hiring, training, employment, and supervision of employees, but fails to allege that it had actual or constructive notice of any dangerous condition.  Defendant’s demurrer to the second cause of action is SUSTAINED with leave to amend. 

C.   Motion to Strike

Defendant argues, and the Court agrees, that Plaintiff’s claim for punitive damages fails because there are no facts alleged that an officer, director, or managing agent had advance knowledge of the security guard’s unfitness and employed them with a conscious disregard of the rights and safety of others, nor are there specific allegations of authorization or ratification by an officer, director, or managing agent. 

Defendant also argues that Plaintiff fails to identify any contract or statute that authorizes the recovery of attorneys’ fees.  Plaintiff did not oppose the motion to strike this claim. 

In light of the foregoing, Defendant’s motion to strike is GRANTED in its entirety. 

IV.     CONCLUSION

Defendant’s demurrer to the First, Third, and Fifth Causes of Action is OVERRULED.  Defendant’s demurrer to the Second Cause of Action is SUSTAINED with 20 day’s leave to amend. 

Defendant’s motion to strike is GRANTED in its entirety.  Leave to amend the claim for punitive damages is not granted at this time.  If Plaintiff later determines that there are additional facts which would give rise to a claim for punitive damages, Plaintiff may file a motion and seek leave to amend the Complaint.  

Moving party 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.