Judge: Mark H. Epstein, Case: 24SMCV01591, Date: 2024-10-23 Tentative Ruling

Case Number: 24SMCV01591    Hearing Date: October 23, 2024    Dept: I

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

The complaint involves an alleged assault and battery that occurred at The Comedy Store.  Plaintiff alleges that he was a patron at the venue.  He claims that he left the bar but forgot to close out his tab.  As he left, the bartender allegedly followed him with some bouncers.  She told him he did not pay.  According to plaintiff, he explained that it was an accident and tendered his credit card to pay, which the bartender took.  Plaintiff was in the process of signing the bill and taking back his card when one of the bouncers stated that plaintiff had attacked the bartender (which plaintiff denies).  What followed, according to plaintiff, was a violent and vicious  beating leaving plaintiff hurt in the gutter.  The demurring defendant is not one of the bouncers.  The demurring defendant is Paul Shore (sometimes referred to as Pauly Shore).  He claims that whatever might have been done by the bouncers, he is not personally liable.

The complaint alleges that Shore was aware of what was going on in real time and was the person in authority at that time.  Specifically, the operative first amended complaint (FAC) alleges that Shore “knew the incident was occurring while it was occurring while it occurred” and that he “ratified and sanctioned as appropriate conduct as the Incident was occurring and/or shortly after the Incident occurred.”  (FAC, ¶39.)  If Shore was actually in charge and aware of the conduct as it was occurring, that would make him potentially responsible.  Shore argues, though, that the sham pleading doctrine applies because certain allegations in the original complaint are not repeated in the FAC.  That is not enough.  The point of the doctrine is to deal with complaints that contain a fatal flaw in the factual allegations, so an amended complaint is filed that contradicts the problematic allegation or omits it.  The prototypical example is the complaint that alleges that an incident occurred on a particular date, leading to a statute of limitations problem.  The amended complaint leaves out the date or alleges a different date without explanation.  Under those circumstances, the sham pleading doctrine will not save the complaint.  The court just does not see that situation here.  The missing allegations were not of the type that were harmful to the complaint.  It might well be that some of the allegations were not re-pled because plaintiff, on reflection, concluded that they were not true or were overstated.  But that is not a sham pleading issue.  To be inconsistent and subject to the doctrine, the substance of the earlier allegation had to have been harmful to the cause of action and the change must be done to circumvent the harmful admission.  (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379.)

Nor is there an incurable problem in the pleading.  Many of the torts are pled on a theory of vicarious liability.  The court does not believe that the bouncer’s conduct was far enough removed from their employment duties to escape vicarious liability for pleading purposes.  Whether that is in fact the case is generally something that can be resolved only with evidence—either on summary judgment or at trial.  And whether Shore can be vicariously liable is hard to determine on demurrer.  (Negligent hiring, in contrast, is a form of direct liability, but that would flow only to the entity doing the hiring).  The concern, though, is Shore’s role.  It is not clear to the court that Shore is alleged to be the employer; it would seem from the complaint that The Comedy Store is the employer.  Even if Shore is the CEO and the person who controls The Comedy Store, it is not clear that there would be vicarious liability that could be imposed directly on him.  Managers are generally not vicariously liable just because the entity is liable; usually vicarious liability (and direct liability for negligent hiring) is liability imposed on an employer, not a manager.  The demurrer is therefore SUSTAINED WITH LEAVE TO AMEND to allow plaintiff to clarify what Shore’s particular role is as to all of these causes of action.  If plaintiff wants to plead alternative theories, he may do so, but he ought to be clear about it.

Shore also complains that some of the causes of action are duplicative.  That might well be the case, but that is not necessarily a reason to sustain a demurrer.  Unless the duplication causes mischief, it is better, in the court’s view, to leave the cause of action in place and deal with it at a later time.  (Blackman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858.) 

That leaves aiding and abetting.  This tort makes one liability who aids and abets the commission of an intentional tort.  The defendant must know that the tortfeasor’s conduct is a breach of duty and nonetheless gives substantial assistance or encouragement to act or gives substantial assistance to the tortfeasor in accomplishing the tortious result and the aider and abettor’s own conduct, separately considered, is also a breach of duty.  (Saunders v. Superior Court (1994) 27 Cal.App.4th 832.)  Here, plaintiff alleges that defendant directly instigated and assisted the assault and battery.  It is conclusory, but ultimate facts are sufficient at this stage.  Whether those facts can be shown is better dealt with at a later time.  But, as set forth below, while conclusory facts are fine, one still has to know what facts are alleged against what defendant.

The major problem here is that plaintiff blows hot and cold as to Shore’s actual role.  Sometimes Shore was aware of the beating as it was happening; sometimes he only learned of it later.  Shore’s actual role at The Comedy Store is not alleged, so it is hard to see how Shore could be vicariously liable.  It is not appropriate for plaintiff to be this opaque as to Shore’s role and the demurrer is SUSTAINED WITH LEAVE TO AMEND, therefore, as to all causes of action involving Shore.

Plaintiff has 30 days’ leave to amend.