Judge: Mark A. Young, Case: 24SMCV00378, Date: 2024-11-13 Tentative Ruling

Case Number: 24SMCV00378    Hearing Date: November 13, 2024    Dept: M

CASE NAME:             Kehoe, et al., v. the Comedy Store, et al. 

CASE NO.:                24SMCV00378

MOTION:                     Demurrer to the First Amended Complaint  

HEARING DATE:   11/13/2024

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.) 

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)  

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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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. (CCP §§ 436(a)-(b); 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”].) 

“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.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.) 

REQUEST FOR JUDICIAL NOTICE 

Defendant requests that the Court take judicial notice of the following supplied documents: 1) Exhibit A - a copy of the Grant Deed of the property located at 8433 Sunset Blvd., West Hollywood, California 90039; and 2) Exhibit B – a copy of the Second Amended and Restated Articles of Incorporation of The Comedy Store. The request is DENIED. These documents are extrinsic evidence which cannot be appropriately considered on demurrer. Further extrinsic facts would be necessary to prove Defendant did not own the subject property. The grant deed alone would not show that Defendant did not own the subject Property on the date of the subject incident. The articles of incorporation are also not subject to judicial notice, as the articles are not facts or propositions capable of immediate and accurate determination by resorting to sources of reasonably indisputable accuracy. (Evid. Code § 452(h).) The articles likewise do not prove Defendant’s lack of ownership on demurrer. Additional extrinsic facts would be required for the court to conclude Defendant lacked ownership at the time of the subject incident.

ANALYSIS 

Defendant Paul Montgomery Shore demurs to each cause of action of the operative First Amended Complaint (FAC) and moves to strike the request for punitive damages. Plaintiff Sean Kehoe and Kirra Lyn Pott’s FAC alleges six causes of action for Battery, Assault, Intentional Infliction of Emotional Distress (IIED), Negligence, Premises Liability, and Negligent Hiring, Training, Supervision and/or Retention of Unfit Employees.

Battery and Assault Causes of Action

Defendant demurs to the first and second causes of action for battery and assault.  “The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

“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.)  

Defendant argues that the FAC alleges contradictory facts that Defendant “knew” his agents planned to assault Kohoe and agreed with and encouraged them to assault Kohoe. (FAC ¶¶ 8-9.) Defendant reasons that if his agents planned to assault Kohoe, then he merely knew about it, and did not commit the assault/battery itself. Indeed, assuming this is true, Defendant would be liable for assault and battery on the respondeat superior doctrine or on a conspiracy/aiding and abetting theory. (See Baptist v. Robinson (2006) 143 Cal.App.4th 151, 160 [an employer vicariously liable for the tortious acts of its employee when those acts are done “within the scope of his or her employment”]; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 78 [a conspiracy theory generally requires an agreement plus an overt act causing damage; aiding and abetting requires not agreement, but simply assistance].) Defendant does not address why such theories fail here, considering the allegations of agency. (FAC ¶6.) Thus, Defendant’s argument does not support a demurrer.

Defendant further argues that the allegations are contradictory because Kohoe pleads that Defendant did and did not batter him, citing the fact that both Defendant’s agents assaulted Kohoe, and that Defendant “violently grabbed and attacked” Kohoe. (FAC ¶¶8, 9, 20-25.) Such facts are not contradictory or antagonistic. Defendant could have both assaulted/battered Plaintiffs directly and through his alleged agents. Whether or not this is true must be tested at a later stage of the proceedings. Defendant also observes that he allegedly “failed to intervene and stop Defendant’s security in their attack against Plaintiff.” Again, this allegation does not contradict the allegations of assault and battery. Defendant could have failed to intervene by stopping security’s assault while also participating in the assault. These allegations create no ambiguities within the meaning of Code of Civil Procedure section 430.10(f), as Defendant may reasonably admit or deny the allegations.

Accordingly, the demurrer is OVERRULED as to the first and second causes of action.

IIED

A cause of action for IIED exists when there is “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.)  A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.  (Id.) A defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Ibid.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Ibid.)

Generally, the question of whether the conduct is in fact outrageous is a question of fact to be determined beyond the pleading stage. (So, supra, 212 Cal.App.4th at 652; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004.) Nonetheless, “[w]hile those cases say that it is ‘usually’ a question of fact, several cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged did not amount to outrageous conduct as a matter of law.” (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 355-356.)

Defendant argues that the FAC alleges that Defendant merely “threatened to touch” Kohoe. (FAC ¶ 25.) Defendant immediately contradicts this argument by noting the allegations that Defendant did more than merely “threaten” to touch Kohoe. Instead, Defendant assaulted and battered Kohoe. (FAC ¶¶ 9, 30.) This allegation places the conduct outside of mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Whether or not the pled assault and battery is outrageous conduct would therefore be a question of fact that cannot be resolved at the pleading stage. Otherwise, Defendant relies on the same arguments rejected above, that there is a contradiction between Defendant threatening to touch Plaintiff and assaulting Plaintiff. There is no such contradiction.

Accordingly, the demurrer is OVERRULED as to the third cause of action.

Negligence/Premises Liability

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998; Civ. Code § 1714(a)).) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.) 

Defendant contends that, contrary to the allegations, he is not the owner, manager, operator, and controller of the Comedy Store.  (FAC ¶ 35). Defendant cites a 2018 Grant Deed regarding the subject property and articles of incorporation of the Comedy Store. He argues that if was not the owner, it is not his duty to protect patrons on the premises, even if he allegedly knew of criminal activity at the property. As noted above, judicial notice was not granted, and the argument is unsupported.

Accordingly, the demurrer is OVERRULED as to the negligence-based causes of action.

Negligent Hiring/Retention

The elements for a claim of negligent hiring, retention and supervision are: 1) defendant hires, retains or supervises an employee; 2) who is incompetent or unfit; 3) defendant had reason to believe undue risk of harm would exist because of the employment; and 4) the harm results. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.) A plaintiff must show that the employer knew or should have known that hiring or retaining 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.)

Defendant argues that the FAC alleges no facts as to how he “knew or should have known” of the security personnel’s incompetency. The FAC alleges, as a matter of ultimate fact, Defendant’s knowledge of the security personnel’s incompetency. The FAC alleges that Defendant “knew, or in the exercise of reasonable diligence should have known” that Defendants who were providing management and security services on the above-mentioned date were unfit and incompetent to perform the duties for which they were hired. (FAC ¶ 56.) While Defendant observes that the FAC lacks evidentiary facts concerning the security’s “vicious” propensities, Defendant does not cite authority which holds this level of detail is necessary to state a claim at the pleading stage.

Accordingly, the demurrer is OVERRULED.

Motion to Strike

Defendant moves to strike the claim for punitive damages. Civil Code section 3294 defines malice as conduct “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.” Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct. (1994) 9 Cal.4th 704, 726.) The statute “plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of “despicable conduct” must be found.” (Id.) The FAC alleges that Defendant intended to harm Plaintiffs by assaulting and battering them or directing such conduct. The FAC alleges that Defendant “violently grabbed” “attacked” and “dragg[ed]” Plaintiff Kohoe. (FAC ¶ 8.) Defendant agreed, planned, and encouraged the assault and “intended that the assault be committed” against Plaintiff. (Id.) These factual allegations show conduct “intended by the defendant to cause injury.” Thus, the punitive damages claim is well stated.

Accordingly, the motion is DENIED.

Defendant to file an answer within 20 days.