Judge: Lee S. Arian, Case: 20STCV08781, Date: 2023-11-07 Tentative Ruling
Case Number: 20STCV08781 Hearing Date: March 7, 2024 Dept: 27
Complaint: 4/4/20
Hon. Lee S. Arian
Department 27
Tentative Ruling
Hearing
Date: 3/7/2024
at 1:30 p.m.
Case
No./Name.: 20STCV08781 FRED WAI HUNG YUE et al. vs PC
PALACES INC. et al.
Motion Name: Demurrer With Motion To Strike
Moving
Party: Defendant ALWAYS PRIVATE SECURITY SERVICES,
INC
Responding
Party: Plaintiff
TZU-FEI
CHU
Notice: Sufficient
Ruling: DEFENDANT’S
DEMURRER TO PLAINTIFF'S SIXTH CAUSE OF ACTION FOR FALSE IMPRISONMENT IS
SUSTAINED WITHOUT LEAVE TO AMEND.
DEFENDANT’S DEMURRER TO PLAINTIFF'S
FIFTH CAUSE OF ACTION FOR NEGLIGENT SUPERVISION, HIRING, AND RETENTION IS
SUSTAINED WITH LEAVE TO AMEND.
DEFENDANT’S
DEMURRER TO THE FOURTH CAUSE OF ACTION OF GENERAL NEGLIGENCE IS OVERRULED.
DEFENDANT’S
MOTION TO STRIKE PLAINTIFF CHU'S FAC'S PRAYER FOR RELIEF, LINES 25–26
IS GRANTED.
DEMURRER
Background
On March 3, 2020, Plaintiff Chu filed
the original complaint. On July 18, 2022, Plaintiff filed the first amended
complaint (FAC), alleging that he was shot by Defendant Xuong Ha on March 9,
2018, at PC Palaces, a restaurant/karaoke bar. Plaintiff alleged that Ruben
Esparza and David Aguilar, security personnel of the restaurant, locked the
doors, preventing patrons from leaving. Plaintiff sued numerous defendants, but
as to Defendant Always Private Security Services, Inc. (APSS), Plaintiff
alleges the fourth cause of action for Negligence, fifth cause of action for Negligent
Hiring, Supervision, and Retention, and sixth cause of action for False
Imprisonment. APSS now demurs to Plaintiff Chu’s general negligence claim on
the bases that (1) APSS did not have a duty to protect Plaintiff from Xuong Ha’s
action; (2) Plaintiff’s claim for negligent hiring, supervision, and retention
is supported only by legal conclusions; and (3) the statute of limitations has
expired on Plaintiff's false imprisonment claim. No opposition was filed.
Legal
Standard
A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. Therefore, it
lies only where the defects appear on the face of the pleading or are
judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
“Liberality in permitting amendment is the
rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.)
Analysis and Conclusion
1. False
imprisonment
When a plaintiff's action is barred by
the statute of limitations, a general demurrer is proper. (Saliter v. Pierce
Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300, fn. 2; Iverson Yoakum,
Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) A demurrer
on the ground of the bar of the statute of limitations lies where it appears
"affirmatively" and "clearly" that, upon the face of the
complaint, the right of action is necessarily barred." (Valvo v. Univ.
of Southern California (1977) 67 Cal.App.3d 887, 895; Mangini v.
Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155.) In California, the
statute of limitations for a plaintiff to bring a civil action for false
imprisonment is one year. (Code Civ. Proc., § 340, subd. (c).)
In the Complaint, Plaintiff alleges that
he was shot at PC Palaces on March 9, 2018. (Complaint ¶ 9.) The original
complaint was filed on March 3, 2020, which is more than one year from date of
the incident. Furthermore, Plaintiff did not file an opposition disputing this.
Thus, Defendant’s demurrer to Plaintiff's sixth cause of action for false
imprisonment is SUSTAINED without leave to amend.
2. Negligent Hiring,
Supervision and Retention.
“[A]n employer can be liable to a third person for
negligently hiring, supervising, or retaining an unfit employee.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of
action for negligent hiring, retention, or supervision, a plaintiff must show
that the employer knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm occurs. (Z.V. v. County of
Riverside (2015) 238 Cal.App.4th 889, 902.) "Boilerplate allegations that defendants knew
or were on notice of perpetrator's past unlawful . . . conduct are not sufficient."
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5.)
FAC only alleges legal conclusions that
APASS’s knew or should have known that hiring the employee created a particular risk
or hazard and that
APSS was negligent in its hiring, supervision, and retention of Defendants
Xuong Ha, Ruben Esparza, Phu Mang Phang, and David Aguilar. (Plaintiff Chu's
FAC, ¶¶ 42-45.) These boilerplate allegations do not allege ultimate facts and
are therefore insufficient to sustain a cause for negligent hiring,
supervision, and retention.
However, the
allegations in the complaint suggest a reasonable possibility that Plaintiff
can plead ultimate facts showing APASS knew or should have known that hiring
the employee posed a specific risk or hazard, including the employee’s past
conduct. Given that liberality in permitting amendment is the rule, Defendant’s demurrer to Plaintiff's fifth
cause of action for negligent supervision, hiring, and retention is SUSTAINED
with leave to amend.
3. General Negligence
“The elements
of a cause of action for negligence are well established. They are (a) a legal
duty to use due care; (b) a breach of such legal duty; and (c) the breach as
the proximate or legal cause of the resulting injury.” (Ladd v. County of
San Mateo (1996) 12 Cal.4th 913, 917; CACI No. 400.) (Quotations omitted.)
The existence of a legal duty is a question of law for the court to determine.
(Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) The
issue to be decided here is whether the FAC sufficiently alleges that Defendant
owed Plaintiff Hu a duty of care. Generally, there is no duty to protect
another from the conduct of third parties. (Delgado v. Trax Bar & Grill (2005)
36 Cal.4th 224, 235.) However, a duty of care to protect a victim from third
party harm may arise when the defendant has a special relationship with either
the victim or the third party. (Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1129.) Relationships between innkeepers and guests is an example
of special relationships that give rise to an affirmative duty to protect.” (Brown
v. USA Taekwondo (2021) 11 Cal.5th 204, 216.) Business owners assume the duty to protect one's patrons
while they are on the premises of a business establishment. The owner will be
liable if the security guard acts unreasonably. (Mata v. Mata
(2003) 105 Cal.App.4th 1121, 1129). Business owner as well as a security
company retained by the business have the duty to protect patrons from
reasonably foreseeable criminal acts. (Balard v. Bassman Event Security,
Inc. (1989) 210 Cal.App.3d 243, 249 [“[T]he relationships are essentially
identical in that from each there arises a duty to protect the customer
from third party criminal activity occurring on the business's
premises.”].)
Contrary
to Plaintiff's argument that Defendant owes no duty to Plaintiff, the law
establishes that business owners and security companies who hire guards owe a
duty to protect patrons from third-party criminal activity. (Balard v.
Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 249; Mata v.
Mata (2003) 105 Cal.App.4th 1121, 1129.) In assessing a demurrer,
allegations must be read liberally and in context. Under such an approach, the
First Amended Complaint (FAC) alleges that Ruben Esparza is a security guard
employed by APSS. (FAC ¶ 5 & 35.) When Defendant Xuong Ha started shooting
within the premises, the security guards locked the doors, trapping patrons
inside, which led to Plaintiff being shot. (FAC ¶ 9, 47-48). Through these allegations,
Plaintiff has successfully pled ultimate facts substantiating the negligence
claim against APSS. Thus, Defendant’s Demurrer to the fourth cause of action of
general negligence is OVERRULED.
MOTION TO
STRIKE
Defendant moves for an order to strike Plaintiff Chu's
FAC's Prayer for Relief, lines 25–26, which states: "For punitive and/or
exemplary damages in an amount appropriate to punish Defendant and deter others
from engaging in similar misconduct."
Legal Standard
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, subd. (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, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) “The
grounds for a motion to strike are limited to matters appearing on the face of
the challenged pleading or matters which must or may be judicially noticed. (§
437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985)
176 Cal.App.3d 17, 20.) A failure to oppose a motion may be deemed a consent to
the granting of the motion. (Cal. Rules of Court, rule 8.54, subd. (c).)
Analysis and Conclusion
Punitive damages may be imposed where it is
proven by clear and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).) “Malice’
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
conscious disregard of the rights or safety of others.” (Civil Code section
3294 (c)(1).) Under the statute, malice does not require actual intent to harm.
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. (Pfeifer
v.John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) ‘Despicable’ is a
powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or
‘contemptible.’ (College Hospital, Inc. v. Superior Court (1994) 8
Cal.4th 704, 725.)
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. (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. (G. D. Searle
& Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.)
The First Amended Complaint (FAC) lacks specific allegations of
willful misconduct by APSS towards Plaintiff Chu that would be necessary to
establish malice or oppression, warranting punitive damages. Although Plaintiff
alleges that the defendant's employees locked the doors of the premises to
prevent patrons from exiting while Defendant Xuong Ha fired several rounds from
his firearm (FAC ¶ 47-48), Plaintiff failed to allege specific
facts showing that defendant’s employee was
aware of the probable dangerous consequences of his conduct and he willfully
failed to avoid such consequences. (Pfeifer v.John Crane, Inc. (2013)
220 Cal.App.4th 1270, 1299.) Thus, Defendant’s motion to strike Plaintiff Chu's
FAC's Prayer for Relief, lines 25–26 is GRANTED.
PLEASE
TAKE NOTICE:
·
If a party
intends to submit on this tentative ruling, the
party must send an email to the court at sscdept27@lacourt.org with
the Subject line “SUBMIT” followed by the case number.
The body of the email must include the hearing date and time, counsel’s contact
information, and the identity of the party submitting.
·
Unless all parties
submit by email to this tentative ruling, the parties should arrange to appear
remotely (encouraged) or in person for oral argument.
You should assume that others may appear at the hearing to argue.
·
If the parties
neither submit nor appear at hearing, the Court may take the motion off
calendar or adopt the tentative ruling as the order of the Court.
After the Court has issued a tentative ruling, the Court may prohibit the
withdrawal of the subject motion without leave.