Judge: Martha K. Gooding, Case: 2022-01270642, Date: 2022-11-28 Tentative Ruling
1. Demurrer to Complaint
2. Motion to Strike Portions of Complaint
The Demurrer by Defendants Jaridly Corporation and Sam Jaridly (collectively, “Defendants”) to the Complaint filed by Plaintiffs Gerald Matranga and Edward Broussard (collectively, “Plaintiffs”) is OVERRULED.
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)
On demurrer, a complaint must be liberally construed. (CCP § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)
Procedural Issue
The Opposition was filed on 11/14/22 and e-served on 11/11/22. But the deadline for serving it was on 11/10/22 – nine court days before the hearing, per CCP section 1005(b).
The Court has discretion to refuse to consider the untimely Opposition papers in ruling on the motion. (See CRC, Rule 3.1300(d).) However, because Defendants addressed the merits of the Opposition in their reply brief, the Court will consider Plaintiffs’ Opposition to the demurrer as well as to the Motion to Strike (below) as no prejudice has been shown. However, Plaintiffs are admonished that in the future, all briefing must be timely field and served, and the Court may exercise its discretion and decline to consider any late-filed briefs pursuant to Rule 3.1300.
Special Demurrer
Special demurrers based on uncertainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.)
Defendants argue that Plaintiffs’ Elder Abuse claim is uncertain as the allegations are too broad with respect to “abuse,” as that term is defined in Welf. & Inst. Code 15610.07.
The Court disagrees. It is apparent from the Complaint that Plaintiffs are alleging physical abuse. The allegations are not confusing. The special demurrer is OVERRULED.
General Demurrer
2nd cause of action for battery
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; see also CACI 1300.)
Plaintiffs allege that Defendants, acting through Diaz (their agent/employee), attacked and injured them while acting within the course and scope of his employment. (Complaint, ¶ 30.)
Plaintiffs base their claim against moving Defendants on the doctrine of respondeat superior, under which “employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment.” (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1055.)
There is no dispute Plaintiffs have alleged the elements of battery against Diaz. With respect to the moving Defendants, as noted above, Plaintiffs allege that at the time of the events, Diaz was acting within the course and scope of his employment. This is sufficient to overcome Defendants’ demurrer, given the liberal pleading standards. (See Code Civ. Proc., § 452; Stevens, supra, 75 Cal.App.4th at 601; Aubry, supra, 2 Cal.4th at 966-67.)
5th cause of action for elder abuse
Welfare & Institutions Code section 15610.07 defines abuse of an elder or dependent adult as:
(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(3) Financial abuse, as defined in Section 15610.30.
The Act defines the term “physical abuse” to include “Battery, as defined in Section 242 of the Penal Code.” (Welf. & Inst. Code § 15610.63.)
To establish a claim against an employer based on the acts of an employee, a plaintiff must establish that an officer, director, or managing agent of the employer engaged in the abuse, authorized the abuse, ratified the abuse, or had advance knowledge of the employees’ unfitness and employed him or her with a knowing disregard of the rights or safety of others. (Welf. & Inst. Code § 15657.)
Plaintiff Matranga asserts this cause of action against all Defendants, alleging that he was 82 years old and was attacked and injured by Diaz during the course and scope of Diaz’s employment. (Complaint, ¶¶ 47-49.)
Based on the allegations in the Complaint, it is evident Plaintiffs are asserting a claim for physical abuse.
The Complaint alleges that Defendants “knew or should have known” that Diaz was a crystal meth user. (Complaint, ¶ 22.) Based on this, the Court finds Plaintiffs have alleged the minimum necessary facts to support liability for elder abuse against Defendants. (See Welf. & Inst. Code, § 15657(c).)
Based on the foregoing, the demurrer is OVERRULED.
(1)MOTION TO STRIKE
Defendants’ Motion to Strike portions of Plaintiffs’ Complaint is granted in part without leave to amend and denied in part, as set forth below.
Defendants shall file and serve their Answer pursuant to the Code of Civil Procedure.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or 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. “Irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10(b).)
A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App. 3d 1, 6.)
Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. (Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010).) The allegations of the complaint are presumed true, and they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App. 4th 1253, 1255.)
Defendants move to strike the following six items from the Complaint:
1. Page 13, lines 4-6: “Defendants should be enjoined from engaging in such unfair and fraudulent behavior, and should be forced to disgorge their ill-gotten profits, in an amount to be proven at the trial of this matter.”
2. Page 13, line 19: “E. Punitive and exemplary damages in an amount according to proof at trial;”
3. Page 13, line 23: “G. Attorneys’ fees as provided by statute;”
4. Page 13, line 24: “H. Disgorgement of ill-gotten profits;”
5. Page 13, line 25: “Temporary and permanent injunctive relief preventing Defendants from engaging in”
6. Page 14, line 1: “similar unfair conduct in the future; and”
Punitive damages
Under Civil Code section 3294, punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code § 3294(c)(1).)
A corporate defendant may not be liable for punitive damages based on the acts of its employees unless the plaintiff alleges and proves that an officer, director or managing agent of the corporation: (1) was personally guilty of oppression, fraud or malice; or (2) had advance knowledge of, authorized, or ratified the wrongful conduct for which the damages are awarded. (Civ. Code § 3294(b).)
In the Complaint, Plaintiffs allege that Mr. Cabinet Care, under the control and direction of Sam Jaridly, assigned Diaz to supervise the project on site (¶ 10), that Diaz was a longtime, habitual user of crystal meth while working for Mr. Cabinet Care (¶ 11), that Diaz, while on crystal meth at work, attacked both Plaintiffs with a hammer, striking them several times (¶¶ 12-13), and that Mr. Cabinet Care knew or should have known that Diaz was a crystal meth user who presented an enormous risk to customers (¶ 22). The Complaint alleges Defendants recklessly caused/permitted Plaintiff Matranga to be placed in a situation where his health was in danger, and that Defentants’ actions were “malicious, oppressive, fraudulent and/or reckless.” (Complaint, ¶¶ 50, 54.)
The Court finds Plaintiffs’ allegations are sufficient at the pleading state to assert a claim for punitive damages. If it is proven true that Defendants were aware Diaz regularly used crystal meth on the job, it is possible for a jury to find that their actions showed a conscious disregard of the safety of their customers. Therefore, the Motion is denied as to the punitive damages claim.
Disgorgement of profits
Plaintiffs seek disgorgement of ill-gotten profits and injunctive relief in connection with their cause of action for Unfair and Deceptive Business Practices against Defendants. Plaintiffs further request disgorgement of ill-gotten profits as well as temporary and permanent injunctive relief against Defendants in their Prayer for Relief.
Disgorgement of profits is not an authorized remedy in an individual action under the UCL. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-1149 (“This court has never approved of nonrestitutionary disgorgement of profits as a remedy under the UCL”).
As a result, the motion is granted as to Plaintiffs’ claims for disgorgement of profits. Although it is difficult to see how Plaintiffs could amend to cure this problem, the Court will permit them the opportunity.
Injunctive Relief
In the opposition, Plaintiffs concede they are not seeking injunctive relief and that it can be stricken from the Complaint. (Opposition at 7:4-6.) As a result, the motion is granted as to items 1, 5, and 6, above.
Attorney Fees
Attorney’s fees are recoverable by a party only if specifically provided for by a statute or law, or if authorized by an express agreement between the parties. (Code Civ. Proc., §§ 1021, 2033.5, subd. (a)(10)(A)-(C); Civ. Code, § 1717; see also Nasser v. Superior Court (1984) 156 Cal.App.3d 52, 56 (“Absent an agreement or statute, a party is generally precluded from recovery of attorney fees.”); Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127.)
In their Prayer for Relief, Plaintiffs request “Attorney’s fees as provided by statute.”
Welf. & Inst. Code section 15657(a) provides for an award of attorney fees to a prevailing plaintiff in elder abuse cases. As a result, the Motion is denied as to the attorney fees claim.
Defendants are ordered to give notice.