Judge Kerry Bensinger, Case Number: 23STCV04286, Date: 2023-09-19 Tentative Ruling

Judge: Kerry Bensinger, Case: 23STCV04286, Date: 2023-09-19 Tentative Ruling

Case Number: 23STCV04286 Hearing Date: September 19, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: September 19, 2023 TRIAL DATE: August 26, 2024

CASE: Ofira Baslo v. Koi Restaurant, et al.

CASE NO.: 23STCV04286

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendants Koi LP dba Koi Restaurant Los Angeles and Adrian Migliore

RESPONDING PARTY: Plaintiff Ofira Baslo

I. BACKGROUND

On February 27, 2023, Plaintiff, Ofira Baslo, filed this action against Defendants, Koi LP dba Koi Restaurant Los Angeles (sued as “Koi Restaurant”) and Adrian Migliore (“Migliore”), for (1) Assault, (2) Battery, (3) Intentional Infliction of Emotional Distress, (4) Negligent Infliction of Emotional Distress, and (5) Negligence Hiring, Training, Supervision, Retention, and Entrustment.

As “relevant background facts,” Plaintiff allege that on January 24, 2022, Plaintiff and her family went to Koi Restaurant. Defendant Migliore demanded that Plaintiff furnish her Covid 19 vaccination card before he would allow Plaintiff and her family to enter the restaurant. Migliore refused to allow Plaintiff and her family into the restaurant despite having provided their vaccination cards. When Plaintiff asked Migliore why he was demanding a vaccination card when other restaurants were not, Migliore became very irate and engaged in a racist tirade. Migliore stated, “all of you [Israelis] are the same, and I don’t want to service you…” Plaintiff and her family are Israeli. During the tirade, Plaintiff began to record Migliore with her cell phone. Migliore then grabbed Plaintiff’s arm and snatched Plaintiff’s cell phone out of her hand. As Plaintiff and her family attempted to leave the premises, Migliore followed Plaintiff outside and continued his racist tirade.

On June 14, 2023, Defendants filed a demurrer and a motion to strike portions of Plaintiff’s Complaint. The demurrer and motion to strike were unopposed.

The demurrer and motion to strike were heard on August 2, 2023. The Court found the allegations were vague and uncertain as to the First, Second, Third, and Fifth Causes of Action, and that the allegations did not support the Fourth Cause of Action for negligent infliction of emotion distress. As such, the Court sustained the demurrer in its entirety. Leave to amend was granted as to the First, Second, Third, and Fifth Causes of Action only.

On August 10, 2023, Plaintiff filed a First Amended Complaint (“FAC”). The FAC asserts causes of action for (1) Assault, (2) Battery, (3) Intentional Infliction of Emotional Distress, and (4) Negligence Hiring, Training, Supervision, Retention, and Entrustment. The First, Second, and Third Causes of Action are asserted against all defendants; the Fourth Cause of Action is asserted against Koi Restaurant only.

In the FAC, Plaintiff repeats the of the same “relevant background facts” from the Complaint. In the FAC, Plaintiff adds two factual allegations: (1) that Migliore threatened Plaintiff and her family by stating that he had a gun and would use it to protect the restaurant from people like Plaintiff and her family; and (2) that Migliore lunged at Plaintiff immediately before grabbing Plaintiff’s arm.

On August 28, 2023, Defendants filed this demurrer and motion to strike portions of Plaintiff’s FAC. Plaintiff has filed Oppositions to the demurrer and motion to strike. Defendants have filed Replies.

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.) Judicial Council forms are not immune to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

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

Defense counsel has complied with the meet and confer requirement.¿ (See Declarations of Shirley Carpenter Bridwell.)

B. Analysis

Defendants argue the demurrer should be sustained as to each cause of action for failure to allege facts sufficient to constitute a cause of action. As the FAC was filed pursuant to the Court’s order sustaining Defendants’ demurrer to the original complaint, the Court disposes of this demurrer by comparing the allegations of the original complaint and the FAC.

1. First Cause of Action for Assault

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669; CACI No.1301.)

Defendants argue the FAC again fails to state facts sufficient to constitute a cause of action for assault. The Court previously sustained the demurrer to the First Cause of Action for uncertainty. Specifically, Plaintiff alleged in the original Complaint that Koi’s employee, Migliore “acted with intent to threaten Plaintiff” but failed to identify what “acts” were done. (See Complaint, ¶¶ 16-17.) In the FAC, Plaintiff adds new allegations that Migliore stated having a gun and that he would use it to protect the restaurant from people like Plaintiff and her family, (FAC, ¶¶ 11, 17), and that Migliore “lunged over at Plaintiff and grabbed Plaintiff’s arm” (FAC, ¶¶ 13, 17). The FAC now clearly refers to these acts—Migliore’s threat to use a gun and lunging at Plaintiff—as the basis for her assault claim. Although the FAC’s “gun” allegations do not sufficiently constitute assault, the Court finds the allegations that Migliore lunged at Plaintiff immediately before grabbing plaintiff’s arm sufficiently states a cause of action for assault against Migliore.

The Court also finds the assault claim is sufficiently pled as to Koi Restaurant. The FAC alleges that Migliore was an employee or agent of Koi Restaurant and that he was acting within the course and scope of his employment with Koi Restaurant. (FAC, ¶¶ 3, 5.) Further, Migliore’s complained-of conduct arose from the requirement that Plaintiff and her family furnish vaccination cards prior to entry into the restaurant. Contrary to Defendants’ contention, the allegations make clear that Migliore’s conduct plainly arose from having to control the entry of patrons into the restaurant based on proof of vaccination. “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.) The FAC sufficiently alleges Migliore was within the scope of his employment with Koi Restaurant.

Accordingly, the demurrer to the First Cause of Action is overruled.

2. Second Cause of Action for Battery

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So, supra, Cal.App.4th 652, 669; CACI No. 1300.)

The Court previously sustained the demurrer to the battery claim in the original complaint for uncertainty. Here, the FAC now clearly alleges that the battery claim is based upon Migliore grabbing Plaintiff’s arm. (See FAC, ¶ 25.) Further, as the Court has found the FAC sufficiently alleges that Migliore was acting within the scope of his employment, the Court finds the FAC states facts sufficient to constitute a cause of action for battery against Migliore and Koi Restaurant.

Accordingly, the demurrer to the Second Cause of Action is overruled.

3. Third Cause of Action for Intentional Infliction of Emotional Distress

The elements of an intentional 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 No. 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.)

The Court previously sustained Defendants’ demurrer to the Third Cause of Action in the original complaint for uncertainty. As described above, the FAC adds new allegations and also identifies Migliore’s “racist tirade” along with Migliore’s gun threat and grabbing of Plaintiff’s arm as the conduct at-issue. The racist tirade is tied to Migliore’s alleged refusal to allow Plaintiff and her family to enter the restaurant because they are Israeli. These allegations, taken together, are sufficient to state a claim.

Accordingly, the demurrer to the Third Cause of Action is overruled.

4. Fourth Cause of Action for Negligent Hiring, Training, Supervision, Retention,

and Entrustment

The elements of a claim for Negligent Hiring, Supervision, or Retention of an employee are: (1) that the defendant hired the employee; (2) that the employee was/became unfit to perform the work for which they were hired; (3) that the employer knew or should have known that the employee was/became unfit and that they created a particular risk to others; (4) that the employee’s unfitness harmed the plaintiff; and (5) that the employer’s negligence in hiring or retaining the employee was a substantial factor in causing plaintiff’s harm. (CACI No. 426.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

The Court sustained the demurrer to this cause of action based on uncertainty and insufficient facts to comprise each element of the negligent hiring claim. The FAC now pleads the elements of a negligent hiring claim. (FAC, ¶¶ 43-47.) However, absent from the FAC are any factual allegations to support the assertion that Koi Restaurant had knowledge of Migliore’s incompetence or unfitness yet employed Migliore regardless. In other words, the allegations are conclusory and fail to allege facts that comprise each of the elements of negligent hiring claim.

Accordingly, the demurrer to the Fourth Cause of Action is sustained.

C. Motion to Strike

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.) For the purposes of a motion to strike, the term “pleading” means a demurrer, answer, complaint, or cross-complaint. (Code Civ. Proc., § 435.)

Defendants seek to strike allegations of and requests for punitive damages and attorney’s fees. The punitive damages allegations appear at Paragraphs 20, 21, 29, 30, 33, 37, 47, and 48, and Paragraph 10 of the Prayer. The request for attorney’s fees appears at Paragraph 9 of the Prayer. Paragraphs 20 and 21 are alleged in support of the First Cause of Action. Paragraphs 29 and 30 are alleged in support of the Second Cause of Action. Paragraphs 33 and 37 are alleged in support of the Third Cause of Action. Paragraphs 47 and 48 are alleged in support of the Fourth Cause of Action. As the Court has sustained the demurrer to the Fourth Cause of Action, the Court considers the merits of the motion to strike as to the First, Second, and Third Causes of Action only and the Prayer.

1. Punitive Damages

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 Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 (College Hospital).)¿ A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. (Citation omitted.) When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him. (Citation omitted.)” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) In Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643, the Court of Appeal noted that the plaintiffs’ factual presentation relating to their claim for punitive damages was “insufficient to meet the specific pleading requirement.” (See also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“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”].)

Here, the Court finds the FAC sets forth sufficient allegations which rise to the level of oppression and/or malice. A reasonable jury could find that Migliore acted with oppression and/or malice when he threatened the use a gun and refused to allow Plaintiff and her family to enter the restaurant because they were Israeli. The FAC alleges more than the mere occurrence of an intentional tort. The FAC sufficiently pleads a demand for punitive damages.

Accordingly, the motion to strike Paragraphs 20, 21, 29, and 30, 37 and 38 and Paragraph 10 of the Prayer from the FAC is denied.

2. Attorney’s Fees

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.)

Defendants next seek to strike attorney’s fees from the FAC because there are no allegations identifying any statute to support an award of attorney’s fees. The Court agrees. There are no allegations indicating there is a statutory basis for an award of attorney’s fees. Plaintiff fails to offer any argument in opposition and thus concedes the point.

Accordingly, the motion to strike Paragraph 9 of the Prayer is granted.

IV. CONCLUSION

The demurrer to the First, Second, and Third Causes of Action is OVERRULED.

The demurrer to the Fourth Cause of Action is SUSTAINED. Leave to amend is DENIED. If additional facts are later discovered to support the negligent hiring claim, Plaintiff may seek leave to amend.

Given the Court’s ruling on the demurrer, the motion to strike as to Paragraphs 47 and 48 is MOOT.

The motion to strike Paragraphs 20, 21, 29, 30, 33, and 37, and Paragraph 10 of the Prayer is DENIED.

The motion to strike Paragraph 10 of the Prayer is GRANTED. Leave to amend is DENIED.

Plaintiffs are to file and serve a Second Amended Complaint (cleaned up) so that it is consistent with this Order. Plaintiffs are to file the Second Amended Complaint within 10 days of this Order. Defendants are to file and serve their Answer to the Second Amended Complaint no later than 10 days after service and receipt of the Second Amended Complaint.

Moving party to give notice, unless waived.

Dated: September 19, 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.