Judge Lee S. Arian, Case Number: 22STCV29393, Date: 2024-01-19 Tentative Ruling

This is an action arising from an alleged assault and battery. On September 9, 2023, Plaintiff Roberto Corona (“Plaintiff”) filed a complaint against Defendants Compton Unified School District and Joseph Davidson (“Defendants”) alleging causes of action for: (1) Battery; (2) Assault; (3) Intentional Infliction of Emotional Distress; (4) Respondeat Superior; and (5) Employer’s Negligence.

On November 16, 2023, Defendants filed a demurrer to the second cause of action in the Complaint, as well as a motion to strike portions of the Complaint. On December 6, 2023, Plaintiff filed an opposition to the demurrer and motion to strike. On December 14, 2023, Defendants filed a reply to the demurrer and motion to strike.

On January 19, 2024, the Court continued the hearing on the instant motion for further briefing in regards to punitive damages. Plaintiff filed a supplemental brief on January 26, 2024.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) “[A] demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact.” (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

counsel met and conferred with Plaintiff’s counsel via email and telephone. (Garcia Decl., ¶ 2.)

Defendants contend that the second cause of action fails to state a valid cause of action and is duplicative of the first cause of action for battery. Plaintiff contends that the second cause of action is sufficient.

“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, 668-69.) A demurrer to a cause of action will be sustained where it “contains, by necessary implication, all of the allegations of each of the preceding [causes of action] and . . . adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.)

The Court finds that the second cause of action is duplicative of the first cause of action for battery and adds nothing to the complaint by way of fact or theory of recovery. In fact, the second cause of action incorporates all the allegations set forth in the first cause of action.

The Court therefore SUSTAINS the demurrer to the second cause of action with 20 days leave to amend.

“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).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

counsel met and conferred with Plaintiff’s counsel via email and telephone. (Garcia Decl., ¶ 2.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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 willful and conscious disregard of the rights or safety of others.” (Civil Code § 3294(c)(1).) “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” California Civil Code, Section 3294(c)(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)

Defendant Davidson seeks to strike punitive damages allegations from the first cause of action for battery, as well as from the prayer for relief in the complaint. The Court allowed supplemental briefing on Plaintiff’s contention that the ultimate facts pled in the complaint are sufficient for a jury to award exemplary damages. Plaintiff alleges that Defendant “approached Plaintiff, physically grabbed Plaintiff, pushed Plaintiff, and ultimately threw Plaintiff to the floor in the hallway. After throwing Plaintiff to the floor, [Defendant] struck Plaintiff with his fists and chocked [sic] Plaintiff with the chain Plaintiff wore around his neck.” (Complaint, ¶11.) Further, the Complaint alleges that Defendant intended to cause this harm and intentionally battered Plaintiff. While Plaintiff did not find an analogous case to point the Court to, he did persuasively argue that, while not every battery will support punitive damages, the further alleged conduct of striking and choking Plaintiff is sufficient, at least at the pleading stage, to move forward on a theory of malice.

The Court SUSTAINS the demurrer of Defendants to the second cause of action in the complaint with leave to amend within 20 days of this ruling.

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.

Hon. Lee S. Arian

Judge of the Superior Court