Judge Kerry Bensinger, Case 22STCV22638 2023-05-04 Tentative Ruling

Judge: Kerry Bensinger, Case: 22STCV22638, Date: 2023-05-04 Tentative Ruling

Case Number: 22STCV22638 Hearing Date: May 4, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: May 4, 2023 TRIAL DATE: January 10, 2024

CASE: Lyonell P. Henson v. Baldwin Gardens, Inc., et al.

CASE NO.: 22STCV22638

DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

AND MOTION TO STRIKE

MOVING PARTY: Defendants PLS Financial Services, Inc. and PLS Check Cashers of California, Inc.

RESPONDING PARTY(S): Plaintiffs Lyonell P. Henson and Sharisse V. Armstrong-Henson

I. BACKGROUND

On July 13, 2022, Plaintiffs Lyonell P. Henson (“Henson”) and Sharisse V. Armstrong-Henson (“Armstrong-Henson”) filed this action against defendants Baldwin Gardens, Inc., Baldwin Brothers, Inc., PLS Check Cashers 536 E. Manchester Avenue Location, PLS Check Cashers of California Inc., PLS Financial Services, Inc. and Dwight Antwan Gibbs (“Gibbs”). On March 9, 2023, Plaintiffs filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for (1) Battery, (2) Assault, (3) Intentional Infliction of Emotional Distress, (4) Negligence, and (5) Premises Liability. The First and Second Causes of Action are asserted against Gibbs only and the Third, Fourth, and Fifth Causes of Action are asserted against all defendants. According to the FAC, Henson lawfully entered PLS Check Cashers at 536 E. Manchester Ave. (“Subject Premises”) on July 14, 2020, to withdraw cash from an ATM machine. While there, Gibbs attacked, robbed, and shot Henson.

On April 10, 2023, PLS Financial Services, Inc. and PLS Check Cashers of California, Inc. (hereinafter, “Defendants”) filed this demurrer to the Third Cause of Action for Intentional Infliction of Emotional Distress and a motion to strike punitive damages. Plaintiff opposes the demurrer and motion to strike and Defendants reply.

II. LEGAL STANDARD FOR DEMURRER

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.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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, the demurring party shall meet and confer in person or by telephone 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).) Defense counsel has satisfied the meet and confer requirement. (Declaration of Stephanie S. Poli, ¶ 3.)

B. Factual Allegations of the Third Cause of Action

The FAC alleges as follows: “Prior to July 14, 2020, the conduct of Defendants and and/or Does 1 through 30, were extreme and outrageous and outside the bounds of common decency and human behavior, because Defendants knew of the dangerous condition of the Subject Premises and failed to take any measurements to protect the public.” (FAC, ¶ 50.) “At the time of the July 14, 2020, incident, and prior to, Defendants maintained the Subject Premises with ATM machines opened 24/7, including between the hours of 12:00a.m-4:00 a.m.” (FAC, ¶ 50 (I).) “Defendants knew, and should have known, the propensity for criminal conduct at the Subject Premises between the hours of 12:00a.m-4:00 a.m.” (FAC, ¶ 50 (J).) “At the time of the July 14, 2020, incident, and prior to, Defendants maintained the Subject Premises with clear glass windows, providing the ability for any person(s) to see the inside of the Subject Premises, including use of the ATM machines. The clear visibility provides the ability and further enhances any person(s) to commit crime against those operating the ATM machine at the Subject Premises. This includes any person(s) to see someone use the ATM machine, collect money, and allow the person(s) to commit a crime and attack and/or assault and/or rob any person(s) using the ATM.” (FAC, ¶ 50 (K).) “On [17 dates listed] there were criminal conduct at the subject premises, including but not limited to, theft, robbery, assault, battery, and homicide directly against person(s) who used the clear-glass ATM machine inside of the subject premises, and were attacked inside the subject premises, or immediately outside the subject premises, as they were exiting the ATM. The person(s) on these dates suffered harm, physical injuries, and/or death as a result of using the ATM machines. The criminal conduct was related to the ability for person(s) to see through the glass windows of the subject premises, so that the person(s) can conduct criminal activity against those using the ATM and withdrawing cash. Defendants ongoing usage of clear windows thereby contributed to the criminal conduct at the subject premises, causing harm to person(s). Defendants knew and should have known based on the police investigations that their subject premises contributed to the ability for person(s) to commit crime.” (FAC, 50 (M).) “Despite notice of prior criminal conduct similar to that of Plaintiff’s claim, Defendants failed to take any measurements to provide safety measures for Plaintiff and/or other persons, thereby contributing to the crime, and ultimately, harm to Plaintiff, with full intentional knowledge.” (FAC, 50 (N).) “Despite notice of the dangerous condition of criminal activity on the premises, Defendants failed to take any measurements to prevent further harm, including changing the see through glass windows, implementing safety protocols, changing the hours of operation, providing lighting, or security.” (FAC, 50 (O).)

C. Intentional Infliction of Emotional Distress

The elements of an intention infliction of emotional distress (“IIED”) claim are: (1) that defendant’s conduct was outrageous; (2) that defendant intended to cause plaintiff emotional distress, or that defendant acted with reckless disregard of the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present when the conduct occurred; (3) that plaintiff suffered severe emotional distress, and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress. (CACI 1600; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-904.)

Defendants argue that the Third Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) is not sufficiently pled. Specifically, there are no allegations that (1) Henson used the ATM machine, (2) Gibbs witnessed Henson’s use of the ATM machine, (3) Defendants were put on notice or intentionally acted in a manner to contribute to this incident, or (4) Defendants acted in a manner so as to intentionally cause Henson extreme emotional distress.

Plaintiffs contend that all the elements of an IIED claim have been alleged at paragraphs 49-52 which is sufficient to survive demurrer.

Contrary to Plaintiffs’ contention, the Third Cause of Action is not sufficiently pled. Missing from the FAC is the disjunctive second element of an IIED claim. The FAC does not set forth any allegations that Defendants intended to cause Henson emotional distress or that Defendants acted with reckless disregard of the probability that Henson would suffer emotional distress, knowing that Henson was present when the conduct occurred. In other words, and as Defendants point out, there are no allegations that Defendants’ alleged failure to provide security measures at the Subject Premises were intended to specifically cause Henson to suffer emotional distress. Further, it strains credulity to reach the conclusion (nor is it pled) that Defendants’ failure to provide security measures or otherwise remedy the alleged dangerous condition was done with Henson specifically in mind. Rather, it is more reasonably inferred from the FAC that Henson’s alleged emotional distress was the result of Gibbs’ criminal conduct. In this way, Plaintiffs appear to conflate the conduct of two separate and unconnected parties to establish the elements of their IIED claim.

Plaintiffs argue that a failure to remedy the dangerous conditions, given the prior criminal incidents, is more than enough to allege intent. However, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen, supra, 54 Cal.3d at pp. 903-904.) As discussed above, Plaintiffs have not alleged that Defendants’ conduct was directed at Henson or that they were aware of Henson’s presence.

Plaintiffs next argue that they are not required to allege intent or knowledge with more particularity because Defendants have superior knowledge. For this proposition, Plaintiffs cite C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861 (C.A.) and Doe v. City of Los Angeles (2007) 42 Cal.4th 531. However, each case is unavailing for the simple reason that Plaintiffs have not alleged facts sufficient to satisfy the second element of an IIED. “[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A., supra, 53 Cal.4th at p. 872.) Plaintiffs may not be required to plead every evidentiary fact supporting their claims. But Plaintiffs must allege sufficient facts to state a cause of action. Plaintiffs fail to do so with respect to the Third Cause of Action for IIED.

Based on the foregoing, the demurrer to the Third Cause of Action is SUSTAINED.

D. Motion to Strike

Defendants move to strike punitive damages from the FAC. Allegations concerning punitive damages appear in the Third, Fourth, and Fifth Causes of Action. Because the Court has sustained the demurrer to the Third Cause of Action, Defendants’ motion to strike is MOOT as to the Third Cause of Action.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct 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.” (College Hosp., supra, 8 Cal.4th at p. 725.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, internal citations & footnotes omitted.) With respect to a corporate employer, 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. (Civ. Code, § 3294, subd. (b).)

Here, Defendants are corporations. Plaintiffs are therefore required to allege that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice is attributable to Defendants’ officer, director, or managing agent. Plaintiffs do not set forth any such allegations.

Accordingly, the motion to strike punitive damages from the Fourth and Fifth Causes of Action is GRANTED.

IV. CONCLUSION

The demurrer is sustained with leave to amend.

The motion to strike is granted as to the Fourth and Fifth Causes of Action with leave to amend. The motion to strike is moot as to the Third Cause of Action.

Plaintiffs are ordered to file and serve a Second Amended Complaint within 30 days of this ruling.

Defendants PLS Financial Services, Inc. and PLS Check Cashers of California, Inc. are ordered to file and serve their responsive pleading within 30 days of service of the Second Amended Complaint.

Moving party to give notice.

Dated: May 4, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

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.