Judge: Mark V. Mooney, Case: 21STCV30507, Date: 2022-10-12 Tentative Ruling

Case Number: 21STCV30507    Hearing Date: October 12, 2022    Dept: 68

21STCV30507           HUI M PANG vs DENISE TURNHAM NORDEN, et al.

TENTATIVE RULING:

RE THE DEMURRER AND MOTION TO STRIKE OF DEFENDANT TRADER JOE’S INC. CO. TO PLAINTIFF HUI PANG’S SECOND AMENDED COMPLAINT

The Demurrer to the Fifth, Sixth and Seventh Causes of Action is OVERRULED.

The Motion to Strike is GRANTED in its entirety with 20 days leave to amend.

I.                    Demurrer

A.          Legal Standard for a Demurrer

Defendant Trader Joe’s has demurred to the Fifth, Sixth and Seventh Causes of Action in the Second Amended Complaint.  As to each Cause of Action, the basis for the demurrer is the claim that Plaintiff has not alleged sufficient facts to hold Trader Joe’s vicariously liable for the conduct of its employee.

A demurrer tests the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.) 

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted.

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿¿ 

B.           Discussion

1.            Intentional Infliction of Emotional Distress

a.             Legal Standard

i.                    Elements of the Cause of Action

“A cause of action for intentional infliction of emotional distress 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.’ (Potter v. Firestone Tire & Rubber¿Co. (1993) 6 Cal.4th 965, 1001.) A defendant's conduct is ‘outrageous’ when¿it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ (Potter, at p. 1001.) And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–51, internal quotation marks omitted.) 

“Liability for intentional infliction of emotional distress ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ (Id. at 1051, quoting Rest.2d Torts, § 46, com. d.)  

“With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. ‘Severe emotional distress means ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’” (Id., quoting Potter,¿supra, 6 Cal.4th at p. 1004.) 

ii.                  Vicarious Liability

“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. Equally well established, if somewhat surprising on first encounter, is the principle that an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–97, citations omitted.)

“While the employee thus need not have intended to further the employer's interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work.” (Id. at 297.)

“Because an intentional tort gives rise to respondeat superior liability only if it was engendered by the employment, our disavowal of motive as a singular test of respondeat superior liability does not mean the employee's motive is irrelevant. An act serving only the employee's personal interest is less likely to arise from or be engendered by the employment than an act that, even if misguided, was intended to serve the employer in some way.” (Id. at 298.)

“The nexus required for respondeat superior liability--that the tort be engendered by or arise from the work--is to be distinguished from "but for" causation. That the employment brought tortfeasor and victim together in time and place is not enough.” (Id.)

“Looking at the matter with a slightly different focus, California courts have also asked whether the tort was, in a general way, foreseeable from the employee's duties. Respondeat superior liability should apply only to the types of injuries that 'as a practical matter are sure to occur in the conduct of the employer's enterprise.' The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Id. at 299, quoting Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959, internal quotation marks omitted.)

            “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ In some cases, the relationship between an employee's work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment. (Mary M. v. City of Los Angeles, 54 Cal.3d 202, 213, quoting Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968, other citations omitted.)

b.            Analysis

Assuming that the facts in the SAC are true for the purposes of the Demurrer, all of the elements necessary have been adequately alleged for the cause of action of intentional infliction of emotional distress. First, using a box cutter to cut someone who is holding or defending a political sign is extreme and outrageous conduct that is itself evidence of at least a reckless disregard of the probability of causing emotional distress. (SAC, ¶¶ 14–16.) Second, Plaintiff complains of severe or extreme emotional distress. (SAC, ¶ 17.) Finally, the actual and proximate causation between the outrageous conduct and the emotional distress are clear.

Moreover, as it relates to vicarious liability, there are sufficient facts alleged to establish a causal nexus and foreseeability here. When this incident occurred, Defendant Norden was a manager at Defendant Trader Joe’s, wore her work shirt, and acted in a parking lot that Defendant Trader Joe’s used. (SAC, ¶¶ 13, 18.) According to Plaintiff, Defendant Norden acted as she did in order to accommodate Trader Joe’s customers, and Defendant Trader Joe’s ratified and accepted the acts of Defendant Norden after the incident. (SAC, ¶¶ 18–20.) Taken as true for the purposes of the Demurrer, these actions are sufficient to conclude that Defendant Norden’s acts in Defendant Trader Joe’s parking lot were foreseeable and that there was a causal nexus between her acts and her work for Defendant Trader Joe’s. Thus, the Court finds that Defendant Trader Joe’s can be vicarious liable on this cause of action.

Accordingly, Defendant Trader Joe’s Demurrer is OVERRULED on these grounds.

2.            Battery

a.             Legal Standard

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

b.            Analysis

Assuming that the facts in the SAC are true for the purposes of the Demurrer, all of the elements are met here for the cause of action of battery. First, hurting Plaintiff with a box cutter is evidence that Defendant Norden did touch Plaintiff. (SAC, ¶¶ 14, 15.) Moreover, Defendant Norden is the one who approached Plaintiff, and Defendant Norden is the one who cut at Plaintiff’s political sign, which Plaintiff was “attempting to hold up” with both hands (Id.) That is sufficient to establish intent to harm Plaintiff and intent to offend Plaintiff. Second, given that the Plaintiff was hurt and that her political banner was cut, it is clear that Plaintiff did not consent to the touching. Third, Plaintiff complains of harm and offense by Defendant’s conduct. (SAC, ¶¶16, 17.) Finally, a reasonable trier of fact could find that a reasonable person in Plaintiff’s position would have been offended by the touching.

For the reasons discussed above, Defendant Trader Joe’s could be vicariously liable for this cause of action.

Accordingly, Defendant Trader Joe’s Demurrer is OVERRULED on these grounds.

3.            Assault

a.             Legal Standard

“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 [he or] 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, 668-669.)

b.            Analysis

Assuming that the facts in the SAC are true for the purposes of the Demurrer, all of the elements are met here for the cause of action of assault. First, as discussed above, the SAC alleges sufficiently that Defendant Norden acted with intent to cause harmful or offensive contact against Plaintiff. Second, Plaintiff did reasonably believe she was about to be touched in a harmful or offensive manner, as indeed she was. Third, as discussed above, it is clear that Plaintiff did not consent to Defendant’s conduct. Fourth, Plaintiff was harmed. Finally, it is clear that Defendant Norden’s conduct was a substantial factor –– and perhaps the only factor –– in causing Plaintiff’s harm.

For the reasons discussed above, Defendant Trader Joe’s could be vicariously liable for this cause of action.

Accordingly, Defendant Trader Joe’s Demurrer is OVERRULED on these grounds.

II.                 Motion to Strike

A.          Legal Standard for a Motion to Strike

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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.) 

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.) 

B.           Discussion

In the Motion to Strike, Defendant Trader Joe’s moves the Court to strike portions of the SAC that relate to punitive damages, arguing that Plaintiff “fails to allege specific facts constituting malicious, fraudulent, or oppressive conduct, and fails to plead specific facts that the alleged wrongful acts were committed or ratified by an officer, director, or managing agent of Trader Joe’s”. (Mot. to Strike, pp. 2–3.)

            The Court agrees that the present allegations are not sufficient to impose punitive liablity upon Trader joe’s. In order for Plaintiff to hold Trader Joe’s liable for punitive damages arising from the actions of its employee, Norden, Plaintiff must allege facts that would support the conclusion that:

…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...

The allegations that that Defendant Norden attacked Plaintiff with a box cutter while Plaintiff was holding a political banner are not sufficient to allege a basis for holding Trader Joe’s liable for punitive damages. The conclusory allegations that after the incident in question, Defendant Trader Joe’s “ratified and accepted the acts of their employee” is not a sufficient factual allegation to support this claim. (SAC, ¶¶ 20.)

Accordingly, Defendant Trader Joe’s Motion to Strike is GRANTED in its entirety.  Plaintiff is granted 20 days leave to amend to file a factually sufficient allegation to support an award of punitive damages against the employer, Trader Joe’s.

[The Complaint was erroneously titled “First Amended Complaint.”  It is the Second Amended Complaint.  Care should be taken to properly title the Third Amended Complaint if Plaintiff elected to replead.]