Judge: Maurice A. Leiter, Case: 23STCV01333, Date: 2024-05-06 Tentative Ruling

Case Number: 23STCV01333    Hearing Date: May 6, 2024    Dept: 54

Hearing Date: May 6, 2024

Department 54, Judge Maurice Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendants 2471 Whittier, LLC, Ron Cholo Enterprise, LLC, David Kiralla, Alen Aivazian and Ryan Sweeney

Responding Party: Plaintiffs Cassandra Catapia and Sergio Velasquez

T/R:     DEFENDANTS’ DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

DEFENDANTS TO NOTICE

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, oppositions, and replies.

BACKGROUND

On January 22, 2024, Plaintiffs Cassandra Catapia and Sergio Velasquez filed the operative first amended complaint against Defendants 2471 Whittier, LLC, Ron Cholo Enterprise, LLC, David Kiralla, Alen Aivazian, and Ryan Sweeney, asserting causes of action for (1) negligence; (2) premises liability; and (3) negligent hiring, training, and supervision. Plaintiffs allege they were shot by a fellow patron at a bar owned and operated by Defendants.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Failure to Join Necessary Party

Defendants demur to the entire complaint on the ground that Plaintiff has failed to join the actual perpetrator of the shooting, David Roman. Defendants have filed a cross-complaint against Roman, joining him to this action. Plaintiffs need not sue every tortfeasor in the same action. This action seeks relief for Defendants’ alleged negligence in allowing Roman, who was a regular, underage patron of Defendants’ bar, onto the premises without checking his ID or checking for weapons, despite the history of violent activity in and around the bar. The demurrer cannot be sustained on this basis.

B. Hearsay

Defendants assert Plaintiffs cannot rely on hearsay evidence to support their claims that Defendants knew or should have known of the potential for violence by Roman. Plaintiffs cite online reviews of patrons recounting violent incidents and/or stating that Defendants’ bar was dangerous. As discussed, the Court must treat the allegations in the complaint as true. The admissibility of Plaintiffs’ evidence is not at issue in this motion. The demurrer cannot be sustained on this basis.

C. Negligence

“In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.)  In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

Defendants demur to the causes of action for negligence on the grounds that they did not owe Plaintiffs a duty of care. Defendants assert that there are no allegations showing Roman’s actions were foreseeable and there are no allegations showing Defendants knew or should have known their security was insufficient. This is contrary to the allegations in the complaint. Plaintiffs allege facts showing Defendants knew of dangerous, violent incidents occurring in or near the bar for years before the incident in this action. Plaintiffs allege Defendants knew Roman was underage and allowed him to patronize the bar regularly. Plaintiffs allege Defendants selectively patted down patrons based on their relationship with security personnel. This is sufficient to show Defendants owed Plaintiffs a duty of care and breached that duty.

Defendants’ demurrer is OVERRULED.

D. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) 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." (CCP § 436.)

Punitive damages are available in noncontract cases where the defendant is guilty of “oppression, fraud, or malice.”  (Civil Code § 3294(a).)  Conclusory allegations are insufficient to support a claim for punitive damages.  (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 620.)  However, “the stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint.”  (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

Defendants move to strike the prayers for punitive damages and references to online reviews of Defendants’ establishment. Defendants assert Plaintiffs have failed to allege malice, oppression, or fraud. The Court disagrees. Plaintiffs have alleged extensive facts showing Defendants knew of violent activity in or around the premises, knew that Roman was underage, and selectively allowed patrons into the premises without checking for ID or weapons based on their friendships with the security staff. This is sufficient to support punitive damages.

The motion to strike is DENIED.