Judge: Mark H. Epstein, Case: 23SMCV05079, Date: 2024-04-22 Tentative Ruling

Case Number: 23SMCV05079    Hearing Date: April 22, 2024    Dept: I

This is a motion to strike brought by Live Nation (actually, the two Live Nation defendants, but they are simply referred to collectively as Live Nation for convenience).  The motion is DENIED.

Plaintiff alleges that he was at a nightclub in London.  Chris Brown was giving a concert in London and was also at the nightclub.  Plaintiff alleges that Brown assaulted him and that he was injured.  He sues Brown as well as Live Nation, which allegedly promoted and organized the concert.  According to plaintiff, Live Nation knew that Brown was violent and had criminal tendencies, but rather than protect the public, Live Nation allegedly attempted to capitalize on that behavior, thereby increasing the risk to the public and to plaintiff.  Live Nation moves to strike the punitive damages allegations and plaintiff opposes.

The court is inclined to DENY the motion.  The allegations of malice and oppression are adequately alleged for pleading purposes.  Specifically, plaintiff alleges that Live Nation was aware of Brown’s tendencies and that he had assaulted people in the past.  The Tour was called the “Under the Influence” Tour allegedly to promote substance abuse, which plaintiff states contributed to Brown’s violent behavior.  The combination of the tour’s name and the alleged knowledge of prior behavior by Brown while on tour is enough for pleading, although the court recognizes that the case is thin.  The court believes that the matter is better tested on summary judgment than at the pleading stage.  That said, to defeat summary judgment, plaintiff will need to explain factually why it is that Live Nation had some obligation to plaintiff outside the concert venue.

The court is also aware that to seek punitive damages against a non-human entity, the plaintiff must allege that the improper conduct was done by an officer, director, or managing agent; that it was authorized or ratified; or that it was done with prior knowledge of a lower-level employee’s dangerous tendencies.  The problem here is that plaintiff cannot allege those facts with specificity.  Before discovery, plaintiff does not know who knew what at Live Nation nor can he.  Where the information necessary to plead is solely within the defendant’s knowledge, the need for specifics is relaxed.  That is the case here.

Live Nation also claims that plaintiff is splitting his primary right.  The primary right, Live Nation argues, is negligence, or (more precisely) the right to be free from it.  Yet, according to the defense, plaintiff is pleading five causes of action rather than one that sound in negligence.  It is true that California follows the “primary right” doctrine, which suggests that the violation of one primary right is one cause of action.  Essentially, there is a primary right of the plaintiff, a primary duty owed by the defendant, and an alleged breach of that duty.  The violation of a single primary right gives rise to but a single cause of action.  (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888.)  Thus, the argument goes, if plaintiff has a right to be physically safe and free from injury, and defendant has a primary duty not to be negligent, and the breach of that duty causes plaintiff to be physically injured, that is one cause of action, no matter how one phrases it.  According to Live Nation, the primary right here is negligence (actually, that is the primary duty) and plaintiff is splitting that right into different causes of action—negligent supervision, negligent hiring, and negligent retention.  The court is not so sure (and the court is not enamored of the primary rights theory at the pleading stage).  Negligence and vicarious liability are different.  But even if they were the same, the duplication does no mischief.  Obviously, plaintiff is not entitled to a double recovery, so if plaintiff prevails on multiple theories, that will not result in adding the recoveries together if it is the same injury.  The fact that, perhaps, this should have been pled as one cause of action with multiple “counts” (which is the way one might need to do it technically) is not worth the confusion that “counts” would cause.  “This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.”  (Blackman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 [in the context of a demurrer based on redundancy].)