Judge Lynette Gridiron Winston, Case Number: 24PSCV01731, Date: 2024-09-18 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV01731, Date: 2024-09-18 Tentative Ruling

The Court OVERRULES the demurrer to the First, Second, and Third Causes of Action. The Court SUSTAINS the demurrer to the Fourth and Fifth Causes of Action with 20 days’ leave to amend.

The Court GRANTS the motion to strike as to the following portions of the complaint:

1. Page 7, lines 18-19, Prayer, paragraph 1c;

The Court DENIES the motion to strike as to paragraphs 7, 17, 19, 20, 22, 23, 24, 26, 28, 29, 30, 32, 33, 35, 36, 40, 41, 43, 48, and 50 of the complaint.

Big 5 is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is an assault and battery case. On May 29, 2024, plaintiff Robert Rodriguez (Plaintiff) filed this action against defendants Big 5 Corp. (erroneously sued as Big 5 Sporting Goods Corporation) (Big 5), Joseph Christian Perez (Perez) (collectively, Defendants), and Does 1 to 10, alleging causes of action for assault, battery, intentional infliction of emotional distress, negligence, and negligent hiring, training, supervision, and/or retention.

On July 3, 2024, Big 5 demurred to and moved to strike portions of the complaint. On August 30, 2024, Plaintiff opposed both motions. On September 11, 2024, Big 5 replied.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co., supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

The Court notes that Big 5’s demurrer violates Rule 3.1320, subdivision (a), of the California Rules of Court by combining multiple grounds for the demurrer into one paragraph for each cause of action. (See Notice, p. 2; Cal. Rules of Court, rule 3.1320, subd. (a).) Each ground for demurrer must be stated in a separate paragraph. (Id.) The Court will still consider the demurrer, but admonishes Big 5 to comply with the requirements of the California Rules of Court going forward.

The Court GRANTS Big 5’s initial request for judicial notice submitted with its moving papers. (Evid. Code, § 452, subd. (d).) However, the Court takes judicial notice only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in that document. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

The Court DENIES Big 5’s supplemental request for judicial notice submitted with its reply papers because it constitutes new evidence on a reply, which generally is not permitted when it raises new issues. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The Court also notes that even if it had been properly requested for judicial notice with the moving papers, the Court would only take notice of the existence of the document, and not the truthfulness of the matters asserted therein. (See Wolf v. CDS Devco (2010) 185 Cal.App.4th 903, 915.)

Per Code of Civil Procedure section 430.41, subdivision (a), Big 5 was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) While the Court finds Big 5’s efforts to meet and confer sufficient, as there is at least evidence of an attempted phone call, the Court also notes the bulk of the efforts to meet and confer were conducted by email. (Rogers Decl., ¶¶ 2-9.) As a reminder, meeting and conferring needs to be conducted by telephone, video conference, or in person. (Code Civ. Proc., § 430.41, subd. (a); Dept. 6 Courtroom Information [“Parties are required to meet and confer in person, by telephone, or by video conference before filing any motion.”])

“’[D]emurrers for uncertainty are disfavored. We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery.’ [Citation.]” (Lickiss v. Fin. Indus. Regul. Auth. (2012) 208 Cal.App.4th 1125, 1135.) Demurrers for uncertainty are generally granted only when the defendant cannot reasonably respond. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Big 5 demurs to each cause of action on the grounds that they are uncertain. Big 5 contends each cause of action is uncertain because the complaint does not specifically identify to which Defendant each cause of action is directed and fails to allege the conduct committed by which Defendant. In opposition, Plaintiff contends that complaint is sufficiently pleaded because the complaint alleges details of the nature of the injuries, the circumstances of the incident, and the direct role of Big 5 and its employee in causing these injuries.

The Court does not find the complaint subject to demurrer for uncertainty. The complaint alleges a set of facts regarding a physical altercation that Plaintiff experienced with Perez, an employee of Big 5. (Compl., ¶¶ 5-17.) These allegations are not unintelligible and are not such that Big 5 cannot reasonably respond to them. Also, the subheading for each cause of action indicates that they are directed at all Defendants. (Compl., 3:23-24, 4:18-19, 5:8-10, 6:2-3, 6:22-23.)

Based on the foregoing, the Court OVERRULES the demurrer to each cause of action on grounds of uncertainty.

To state a cause of action for assault, the plaintiff must allege facts demonstrating, “(1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. [Citation.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

To state a cause of action for battery, the plaintiff must allege facts demonstrating: (1) the defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; (2) the plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

“Under the doctrine of respondeat superior, ‘an employer is vicariously liable for the torts of its employees committed within the scope of the employment.’ [Citation.]” (Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1138.) “’The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee's duties, or (2) it is reasonably foreseeable in light of the employer’s business.’ [Citation.]” (Crouch v. Trinity Christian Ctr. of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015 (Crouch).)

Big 5 demurs to the First and Second Causes of Action for assault and battery, respectively, on the grounds that they fail to state a cause of action. Big 5 contends the complaint does not allege facts demonstrating a causal nexus between Perez’s alleged conduct and Big 5. Big 5 notes that the complaint alleges Perez was working at Big 5’s sales counter register, but alleges no facts showing that Perez’s actions towards Plaintiff were required by his duties or reasonably foreseeable in light of Big 5’s business a sporting goods retailer.

In opposition, Plaintiff contends he has sufficiently pleaded the First and Second Causes of Action for assault and battery. Plaintiff contends Perez’s actions were within the course and scope of his employment with Big 5, and the complaint alleges that Perez injured Plaintiff was performing his duties as an employee of Big 5, making it foreseeable and directly tied to his role at Big 5. Plaintiff further contends that even if Perez’s specific actions were unauthorized, they were carried out in the context of his employment.

The Court finds the complaint alleges sufficient facts to state causes of action for assault and battery against Big 5 under the doctrine of respondeat superior. Whether the employee was acting within the course and scope of employment is ordinarily a question of fact, (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968), and a demurrer is not the appropriate procedure for determining the truth of disputed facts, (Panterra GP, Inc. v. Superior Court of Kern County (2022) 74 Cal.App.5th 697, 709). The complaint alleges that Perez was an employee of Big 5, Perez began to threaten Plaintiff when Plaintiff tossed some sunglasses onto the sales counter while Perez was working the register, and that Perez attacked Plaintiff after a different employee of Big 5 had escorted Plaintiff to his car. (Compl., ¶¶ 6, 8-12.) For purposes of this demurrer, the Court finds these allegations sufficient.

Based on the foregoing, the Court OVERRULES the demurrer to the First and Second Causes of Action for assault and battery, respectively.

To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts demonstrating, “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 (Berry).) “Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534; but see Berry, supra, 90 Cal.App.5th at p. 1273 [“’[W]hether conduct is ‘outrageous’ is usually a question of fact.’ [Citation.]”

Big 5 demurs to the Third Cause of Action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action. Big 5 contends a corporation cannot commit intentional infliction of emotional distress, and argues that because Plaintiff cannot satisfy the claims of assault and battery against Big 5, Plaintiff also cannot maintain a cause of action for intentional infliction of emotional distress based on the same allegations.

In opposition, Plaintiff contends the complaint clearly alleges that Perez, as an employee of Big 5, engaged in extreme and outrageous conduct by injuring Plaintiff. Plaintiff contends Perez’s conduct served Big 5’s interests by maintaining order and enforcing store policies, even if done recklessly or negligently. Plaintiff contends Perez’s conduct fell within the scope of his duty to manage customer interactions, ensure compliance with store rules, and address potential disturbances. Plaintiff also contends that a corporation can still be held liable for the intentional torts of its employees if it falls within the scope of his or her employment. Plaintiff further contends the complaint sufficiently alleges Plaintiff suffered severe emotional distress as a result of Perez’s actions.

While the Court does not accept arguments stated in the Opposition as facts alleged in the Complaint, the Court still finds the complaint alleges sufficient facts to state a cause of action for intentional infliction of emotional distress under the doctrine of respondeat superior. Big 5’s argument regarding liability for corporations vis-à-vis intentional infliction of emotional distress is misleading. The case Big 5 cited, Brown v. Allstate Inc. Co. (1998) 17 F.Supp.2d 1134, is a federal case interpreting state law and is not binding on this Court. (McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382, 1396.) Also, the federal district court in Brown included a footnote that said, “It should be noted that Allstate can be vicariously liable for torts committed by an employee in the course and scope of employment.” (Brown v. Allstate Ins. Co. (1998) 17 F.Supp.2d 1134, 1139 fn. 4.)

Moreover, to the extent Big 5 is reiterating its arguments regarding assault and battery, the Court finds those arguments unavailing for the same reasons set forth above. For purposes of this demurrer, the Court otherwise finds the complaint alleges sufficient facts to state a cause of action for intentional infliction of emotional distress against Big 5 under the doctrine of respondeat superior based on the actions of Defendant Perez.

Based on the foregoing, the Court OVERRULES the demurrer to the Third Cause of Action for intentional infliction of emotional distress.

“’To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.’ [Citation.]” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

Big 5 demurs to the Fourth Cause of Action for negligence on the grounds that it fails to state a cause of action. Big 5 contends this cause of action fails because Plaintiff admits in his pleadings that one of Big 5’s other employees escorted Plaintiff out of the store to his vehicle.[1] Big 5 also contends this cause of action is duplicative of the Fifth Cause of Action for negligent hiring, training, supervision, and/or retention.

In opposition, Plaintiff contends he has sufficiently pleaded a cause of action for negligence, arguing that Big 5 had a duty to ensure Plaintiff’s safety and wellbeing while on the premises, which duty extends to its employees, and arguing that employers are required to exercise reasonable care in the hiring, training, and supervision of employees. Plaintiff contends Big 5 breached this duty by failing to adequately supervise and control Perez, despite being aware of his propensity for aggressive behavior. Plaintiff then contends this breach caused Plaintiff’s damages.

The Court finds the complaint fails to allege sufficient facts to state a cause of action for negligence. It is unclear to the Court what kind of negligence claim Plaintiff is actually alleging here. Paragraphs 37 through 43 of the complaint simply make conclusory allegations for negligence in what sounds like a premises liability claim. (Compl., ¶¶ 37-43.) On the other hand, Plaintiff argues in his opposition as though this is a negligent hiring, supervision, and retention claim. (Opp., 8:14-10:3.) Paragraphs 11-12 of the complaint make it sound as though Big 5 failed to protect Plaintiff from Perez when escorting him back to the car, but the complaint only alleges in a conclusory fashion that “the escort left prematurely…” (Compl., ¶¶ 5-17.) The Court finds these allegations insufficient to state a cause of action for negligence. Alternatively, if this is effectively a cause of action for negligent hiring, supervision, and retention, then it would be subject to demurrer for being duplicative of the Sixth Cause of Action. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative causes of action are subject to demurrer].)

Accordingly, the Court SUSTAINS the demurrer to the Fourth Cause of Action for negligence with 20 days’ leave to amend.

Fifth Cause of Action – Negligent Hiring, Training, Supervision, and/or Retention

“[A]n employer may be liable to a third party for negligently hiring or retaining an unfit employee.” (J.W. v. Watchtower Bible & Tract Soc'y of New York, Inc. (2018) 29 Cal.App.5th 1142, 1163.) To state a cause of action for negligent hiring, supervision, or retention, the plaintiff must allege facts demonstrating the employer defendant had reason to know of the employee’s qualities that would likely harm others. (Id., at p. 1163.)

Big 5 demurs to the Fifth Cause of Action for negligent hiring, training, supervision, and/or retention on the grounds that it fails to state a cause of action. Big 5 contends Plaintiff fails to allege specifically how Big 5’s principals failed to investigate and carefully evaluate Perez before hiring him, and how such an investigation would have made Big 5 aware of Perez’s alleged unfitness. Big 5 contends that Plaintiff provides no factual information about Perez’s training and education at the time or hiring or any facts indicating Big 5’s principals’ knowledge regarding those things at the time of hiring, nor has Plaintiff pleaded any facts that Perez had disciplinary incidents. Big 5 contends Plaintiff has not pleaded facts demonstrating that these actions were the cause of Plaintiff’s alleged harms.

In opposition, Plaintiff contends the complaint sufficiently pleads a cause of action for negligent hiring, training, supervision, and retention. Plaintiff contends the complaint alleges Big 5 either knew or should have known of Perez’s unfitness for his role, given the nature of his duties and the potential risk his conduct posed to customers, and contends that Big 5 failed to properly vet and assess Perez’s qualifications. Plaintiff contends the complaint asserts that Big 5 failed to adequately train Perez, negligently supervised him, and retained him despite his observable behaviors.

The Court finds the complaint fails to allege facts stating a cause of action for negligent hiring, training, supervision, and/or retention. The complaint only alleges in a conclusory fashion that Big 5 had acknowledged “the problematic nature of [Perez], who had been causing issues for customers.” (Compl., ¶ 7.) The complaint does not allege any facts demonstrating what those issues were. The only incident at issue demonstrating Perez’s allegedly problematic behavior is this one incident. (Compl., ¶ 10.) The complaint does not allege any facts demonstrating that Big 5 knew or had reason to know of Perez’s problematic behavior at the time of the incident in question. (See Compl., ¶¶ 5-17.)

Based on the foregoing, the Court SUSTAINS the demurrer to the Fifth 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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike 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.” (Id., § 436.)

Per Code of Civil Procedure section 435.5, subdivision (a), Big 5 was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 435.5, subd. (a).) While the Court finds Pomona Valley’s efforts to meet and confer sufficient, as there is at least evidence of an attempted phone call, the Court also notes the bulk of the efforts to meet and confer were conducted by email. (Rogers Decl., ¶¶ 2-9.) As a reminder, meeting and conferring needs to be conducted by telephone, video conference, or in person. (Code Civ. Proc., § 435.5, subd. (a); Dept. 6 Courtroom Information [“Parties are required to meet and confer in person, by telephone, or by video conference before filing any motion.”])

A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “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. 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).)

Big 5 moves to strike the punitive damages requests from the complaint, contending that the complaint is devoid of any allegations demonstrating malice, oppression, or fraud by Big 5. Big 5 contends the allegations of the complaint are conclusory and lack the specificity required to support a finding of malice, oppression, or fraud on the part of Big 5. Big 5 also contends Plaintiff has failed to allege any facts demonstrating intent, despicable conduct, conscious disregard, or Plaintiff being subject to cruel and unjust hardship. Big 5 further contends Plaintiff’s allegations directly undermine any claim for punitive damages against Big 5, as the complaint alleges Big 5 assisted Plaintiff by escorting him to his car due to Perez’s threats.

Big 5 also contends that Plaintiff has failed to satisfy the requirements for alleging punitive damages against a corporate defendant by not alleging specific facts of wrongful conduct engaged in by principals of Big 5. Big 5 contends Plaintiff has not established that Perez had any authority over Big 5’s corporate policy or that any officers, directors, or managing agents of Big 5 knew, directed, or otherwise ratified Perez’s alleged conduct.

In opposition, Plaintiff contends the requests for punitive damages are based on the allegations and factual circumstances detailed throughout the complaint and are thus appropriately included. Plaintiff contends the allegations of the complaint show that Big 5 knew or should have known of Perez’s problematic behavior and failure to take appropriate action, Big 5 failed to properly defuse the situation, and the aggressive behavior of Perez, coupled with Big 5’s inadequate response, indicates an oppressive disregard for Plaintiff’s rights.

The Court finds the complaint fails to allege sufficient facts to support Plaintiff’s claims for punitive damages against Big 5. Although the Court overruled the demurrer to the First through Third Causes of Action, which otherwise would support requests for punitive damages, the complaint fails to allege sufficient facts to satisfy the requirement of Civil Code section 3294, subdivision (b), which applies to corporations like Big 5. As noted above regarding Plaintiff’s negligent hiring, supervision, and retention claim, the complaint fails to allege sufficient facts demonstrating that Big 5 had advance knowledge of Perez’s violent propensities and problematic behavior. The complaint only alleges in a conclusory fashion that Big 5 had acknowledged “the problematic nature of [Perez], who had been causing issues for customers.” (Compl., ¶ 7.) The complaint does not allege any facts demonstrating what those issues were. The only incident at issue demonstrating Perez’s allegedly problematic behavior is this one incident. (Compl., ¶ 10.) The complaint does not allege any facts demonstrating that Big 5 had advance knowledge of Perez’s problematic behavior at the time of the incident in question. (See Compl., ¶¶ 5-17.) The complaint also contains no allegations of an officer, director, or managing agent of Big 5 having advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice regarding Perez’s problematic behavior. (See Civ. Code, § 3294, subd. (b).)

Accordingly, the Court GRANTS the motion to strike as to page 7, lines 18-19, Prayer, paragraph 1c, page 7, lines 24-25, Prayer, paragraph 2c, page 8, lines 203, Prayer, paragraph 3c, and page 8, line 15, Prayer, paragraph 5d.

Attorney fees are recoverable when authorized by statute, contract, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10); see City of Industry v. Gordon (1972) 29 Cal.App.3d 90, 93.) Improper requests for attorney fees are subject to a motion to strike. (Code Civ. Proc., § 436, subd. (a) [strike out any improper matter asserted in any pleading].)

Big 5 contends the prayer for attorney’s fees is improper because there is no statutory or contractual basis for recovery of attorney fees alleged in the complaint. Plaintiff’s opposition does not address this argument.

The Court agrees with Big 5. The complaint contains no allegations of a contract or statute or other law that would authorize Plaintiff to recover attorney fees here. The Court also construes Plaintiff’s lack of opposition to this argument as a tacit admission that Big 5’s argument is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”]

Based on the foregoing, the Court GRANTS the motion to strike as to page 8, line 16, Prayer, paragraph 5e.[2]

A motion to strike may be used to strike out any irrelevant, false, or improper matters. (Code Civ. Proc., § 436, subd. (a).)

Big 5 seeks to strike various paragraphs in the complaint on the grounds that they contain irrelevant, false, or improper matters. Big 5 contends Plaintiff lumps Big 5 in with conduct alleged to have been taken by Perez and that Plaintiff fails to allege facts by Big 5’s managing agents.

In opposition, Plaintiff contends that Big 5 seeks to strike allegations integral to the complaint that are well-supported by the factual allegations. Plaintiff contends these allegations are premised on the assertions that Perez, as an employee of Big 5, intentionally harmed Plaintiff, and that Big 5 knew or should have known of Perez’s problematic behavior.

The Court finds Big 5 fails to demonstrate how these allegations, namely paragraphs 7, 17, 19, 20, 22, 23, 24, 26, 28, 29, 30, 32, 33, 35, 36, 40, 41, 43, 48, and 50, are irrelevant, false, or improper. As discussed above, respondeat superior is a key issue with respect to the First through Third Causes of Action, so even if Plaintiff lumped the actions of Big 5 and Perez together, that does not necessarily render these allegations irrelevant, false, or improper. Moreover, the paragraphs Big 5 seeks to strike pertain specifically to the First through Third Causes of Action. As noted above, the Court overruled the demurrer to the First through Third Causes of Action because it found Plaintiff had alleged sufficient facts to state those claims against Big 5. The Court otherwise finds these paragraphs are supported by the underlying factual allegations. (See Compl., ¶¶ 5-17.)

The Court DENIES the motion to strike as to paragraphs 7, 17, 19, 20, 22, 23, 24, 26, 28, 29, 30, 32, 33, 35, 36, 40, 41, 43, 48, and 50 of the complaint.

The Court OVERRULES the demurrer to the First, Second, and Third Causes of Action. The Court SUSTAINS the demurrer to the Fourth and Fifth Causes of Action with 20 days’ leave to amend.

The Court GRANTS the motion to strike as to the following portions of the complaint:

1. Page 7, lines 18-19, Prayer, paragraph 1c;

The Court DENIES the motion to strike as to paragraphs 7, 17, 19, 20, 22, 23, 24, 26, 28, 29, 30, 32, 33, 35, 36, 40, 41, 43, 48, and 50 of the complaint.

Big 5 is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Big 5 then proceeds to argue about many purported facts not alleged in the complaint, which the Court cannot consider on a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co., supra, 116 Cal.App.4th at p. 994.) These factual contentions are also unavailing because whether someone was acting within the scope of employment for purposes of respondeat superior is generally a question of fact not amenable to demurrer. (See Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968; Panterra GP, Inc. v. Superior Court of Kern County, supra, 74 Cal.App.5th at p. 709.)

[2] The Court notes that the moving papers identified the request for attorney fees as part of paragraph 5d of the Prayer for Relief, but the complaint shows this request is in fact paragraph 5e of the Prayer for Relief. (Compl., p. 8, ln. 16, ¶ 5, subd. (e).)