Judge Lee S. Arian, Case Number: 23STCV22661, Date: 2024-12-03 Tentative Ruling

Judge: Lee S. Arian, Case: 23STCV22661, Date: 2024-12-03 Tentative Ruling

Case Number: 23STCV22661 Hearing Date: December 3, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION FOR JUDGMENT ON THE PLEADINGS

Hearing Date: 12/3/24¿

CASE NO./NAME: 23STCV22661 JEROME BENNETT BEY vs. LAMAR WEEMS, II et al.

Moving Party: Defendant 1431 Promenade

Responding Party: Plaintiff¿

Notice: Sufficient¿

Ruling:

IIED- GRANTED WITHOUT LEAVE TO AMEND

PUNITIVE DAMAGE – GRANTED WITH LEAVE TO AMEND

Background

This action arises from an incident where Defendant Lamar Weems II, evading police, drove into a crowd at a carnival, injuring Plaintiff Jerome Bennett Bey (“Plaintiff”), who alleges he was working as hired security for the event. Plaintiff’s complaint seeks damages not only against the driver but also against the carnival organizers, including Defendants Los Angeles Police Museum, Thomas Edward Baque, Gerald Ray Baque, and Baque Bros. Concessions, Inc. (the “Baque Entities”). The complaint asserts causes of action for negligence, negligent hiring, supervision, and retention, premises liability, dangerous condition of public property, intentional infliction of emotional distress (IIED), and negligent entrustment. The Baque Entities now move the Court for judgment on the pleadings with regard to Plaintiff's IIED cause of action and prayer for punitive damages.

IIED

"The wrongful conduct alleged in support of a cause of action for intentional infliction of emotional distress must be conduct that is directed at the plaintiff" (Shin v. Kong (2000) 80 Cal.App.4th 498, 512 [95 Cal.Rptr.2d 304]). Additionally, "[I]t is not enough that an act be outrageous to state a cause of action for intentional infliction of emotional distress. Intentional means more than the nonaccidental nature of the wrongful act. That act must also be directed at the plaintiff." (Smith v. Pust (1993) 19 Cal.App.4th 263, 274).

Plaintiff does not dispute or distinguish the legal authority cited by Defendant but argues that Defendants fail to state which elements are missing to suggest Plaintiff cannot bring his claim. Contrary to Plaintiff’s argument, the issue is the element of intentionality.

Plaintiff argues that he has specifically alleged facts sufficient to support a claim for intentional infliction of emotional distress. Plaintiff contends that despite Defendants’ heightened duty and knowledge of a prior similar incident, Defendants authorized and ratified the extreme and outrageous conduct of their agents. (Complaint at ¶¶ 36–38, 91.) Plaintiff further alleges that Defendants’ outrageous conduct was a direct and proximate cause of his damages. (Complaint at ¶ 92.)

Paragraph 36-38, 91-92 of the Complaint states the following:

36. Plaintiff is informed and believes, and thereon alleges that the Baque Entities have had at least one incident at a prior carnival involving a vehicle being driven through safety barriers similar to those installed at the Carnival. Plaintiff is further informed and believes, and thereon alleges that the Baque Entities were aware that the barriers erected for the Carnival were not adequate for stopping vehicles and posed a risk to attendees and staff. Plaintiff is further informed and believes, and thereon alleges that this information was neither disclosed, nor requested, as part of the special use permit application process for the Carnival.

37. Plaintiff is informed and believes, and thereon alleges that the Baque Entities and LA Police Museum knew, or reasonably should have known that properly secured concrete k-rails were capable of preventing unauthorized vehicles from entering the Carnival and that plastic barriers were inadequate. Plaintiff is further informed and believes, and thereon alleges that the Baque Entities and LA Museum opted not to use concrete barriers or properly secure the barriers that were used at cross street entrances to save money.

38. Plaintiff is informed and believes and thereon alleges that the Baque Entities and LA Police Museum employed unqualified and unlicensed staff, agents, and/or contractors to ensure the Carnival was properly secured.

91. Through Weems II and the Baque Entities’ outrageous conduct as described above, said Defendants acted with a discriminatory intent to cause, or with a reckless disregard for the probability to cause, Plaintiff humiliation, mental anguish, and substantial and enduring emotional distress. To the extent that said outrageous conduct was perpetrated by certain agents of Weems II and/or the Baque Entities, said Defendants authorized and ratified the conduct with the knowledge that Plaintiff’s emotional and physical distress would thereby increase, and with a wanton and reckless disregard for the deleterious consequences to Plaintiff.

92. As a direct and proximate result of said Defendants’ actions against Plaintiff, as described above, Plaintiff has suffered and continues to suffer general damages including but not limited t significant and enduring emotional distress including humiliation, mental anguish and physical distress, injury to mind and body, in an amount to be established at the time of trial.

The allegations in the complaint fail to establish that Defendants' conduct was directed at Plaintiff, as required to sustain a cause of action for intentional infliction of emotional distress (IIED) under California law. To meet the standard set forth in Smith v. Pust (1993) 19 Cal.App.4th 263, and reaffirmed in Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, the wrongful conduct must be personally aimed at the plaintiff. Generalized allegations of negligence or recklessness, without showing that Defendants' actions were specifically directed at Plaintiff, are insufficient to sustain an IIED claim.

Here, the complaint alleges that the Baque Entities and the LA Police Museum failed to use adequate barriers, opted for cost-saving measures, and employed unqualified staff to manage the Carnival’s safety. These claims assert a general failure to maintain safety measures and suggest negligence or recklessness with regard to Carnival attendees as a whole, referencing prior incidents of vehicles breaching barriers. However, there are no specific factual allegations that Defendants acted with the intent to target Plaintiff individually or that Plaintiff’s presence was a factor in their decisions.

Similarly, the conclusory assertions in paragraphs 91 and 92, claiming "discriminatory intent" or "reckless disregard" for Plaintiff’s emotional distress, fail to connect the alleged conduct specifically to Plaintiff. These statements amount to legal conclusions without factual support demonstrating that Defendants’ actions were directly aimed at Plaintiff or intended to cause harm to Plaintiff.

Accordingly, the allegations do not meet the requisite pleading standards. Based on the information alleged, it also appears unlikely that Plaintiff can allege that Defendant's actions were directed against Plaintiff. Therefore, leave to amend is denied.

Punitive Damage

Plaintiff’s claim for punitive damages rests on paragraphs 91 and 94 of the complaint:

94. Defendants Baque Entities’ conduct was oppressive and malicious in that it subjected Plaintiff to cruel and unjust hardship in willful and conscious disregard of Plaintiff's rights, health, and safety, thereby entitling Plaintiff to an award of punitive damages. Such conduct, as detailed above, includes, but is not limited to: (a) Baque Entitles’ use of plastic barriers despite knowledge of their ineffectiveness based on prior incidents; and (b) a failure to disclose prior incidents as part of the special use permit application process.

Plaintiff, in the opposition, argues that Defendants understood their decision to use inferior barriers would probably have injurious consequences to Plaintiff or others. Plaintiff further alleges that the use of plastic barriers has resulted in injuries in the past, yet Defendants decided to use these barriers to save money.

Plaintiff must assert specific facts to support a conclusion that a defendant acted with oppression, fraud, or malice. There is a heightened pleading requirement for claims involving punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041–1042.) While ultimate facts may suffice for standard pleadings, they are insufficient to meet the heightened requirements for punitive damages.

The allegations in paragraphs 91 and 94 of the complaint fail to meet the heightened pleading standard for punitive damages under California law, as they rely on conclusory statements rather than specific facts demonstrating oppression, fraud, or malice. Paragraph 91 broadly alleges that Defendants acted with "discriminatory intent" and "reckless disregard" but lacks factual details showing how Defendants’ actions specifically targeted Plaintiff or knowingly disregarded a substantial risk to him. Similarly, the assertion that Defendants authorized and ratified their agents’ conduct is conclusory, as it provides no description of specific decisions or actions evidencing conscious approval of misconduct. Paragraph 94 further alleges that Defendants acted with "oppressive and malicious" intent, subjecting Plaintiff to cruel and unjust hardship in willful and conscious disregard of his rights, health, and safety, by using ineffective plastic barriers and failing to disclose prior incidents. However, these claims are devoid of supporting details, such as the frequency of prior incidents, how Defendants became aware of them, or whether they ignored warnings about the barriers’ ineffectiveness.

In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, the court distinguished between risks that are merely foreseeable and those that are necessarily probable, holding that the latter is required to establish willful misconduct. In this case, Plaintiff's allegations must demonstrate that the risk posed by the use of plastic barriers was not merely foreseeable but necessarily probable to sustain claims for punitive damages.

The Court does not find that the risk posed by using plastic barriers, despite prior incidents, rises to the level of being necessarily probable. For example, in the context of drunk driving, the risk of hitting someone is foreseeable, as such events may occur, but it does not rise to a high probability where drunk driving would predictably result in a car accident, thereby becoming necessarily probable. Similarly, while Plaintiff alleges prior incidents involving vehicles breaching barriers, Plaintiff does not allege the frequency of such incidents. If more than 50 percent of events involve vehicles driving into crowds, such a risk could be deemed necessarily probable. Conversely, if such events occur in less than only 1 percent of cases, the risk would be foreseeable but not necessarily probable. Here, Plaintiff has not provided sufficient allegations to establish the frequency of prior incidents or to show that the risk was necessarily probable rather than merely foreseeable. Without such allegations, Plaintiff's claim for punitive damages is insufficiently pled.

Furthermore, Plaintiff seeks punitive damages against all Baque Defendants including multiple individual defendants and corporate defendants. Because punitive damages must be alleged with specificity, Plaintiff must articulate how each of the Baque Defendants individually acted with willful and conscious disregard for the rights or safety of others. Additionally, punitive damages against corporate defendants are subject to special requirements under Civil Code § 3294(b), which provides that "an employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice." Generalized allegations against all defendants, without specifying the conduct and intent of each, are insufficient to sustain a claim for punitive damages against multiple defendants.

Under Goodman v. Kennedy (1976) 18 Cal.3d 335, 348, leave to amend should be granted where there is a reasonable possibility that a plaintiff can cure defects in the pleading. The Court finds that Plaintiff’s allegations are conclusory and fail to distinguish the conduct of each Defendant. However, there is potential for Plaintiff to provide additional facts clarifying the specific actions of each Defendant and the frequency of prior incidents where vehicles drove into crowds, thereby supporting a claim that the risk was necessarily probable. Accordingly, the Court concludes that there is a reasonable possibility that the deficiencies in Plaintiff’s punitive damages allegations can be cured through amendment, and leave to amend is warranted.

Thus, the motion is granted as to punitive damages, with leave to amend within 30 days.

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.