Judge: Melvin D. Sandvig, Case: 24CHCV02761, Date: 2025-02-20 Tentative Ruling

Case Number: 24CHCV02761    Hearing Date: February 20, 2025    Dept: F47

Dept. F47

Date: 2/20/25

Case #24CHCV02761

 

DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 1/17/25.

 

MOVING PARTY: Defendants Charisma Academy I Inc. dba Granada Hills Montessori Preschool, Noesh Hordagoda and Gladys Villalobos

RESPONDING PARTY: Plaintiff J.M.

NOTICE: ok

 

Demurrer is to the 1st, 2nd, 3rd, 5th, 6th and 7th causes of action:

            1.  Assault

            2.  Battery

            3.  Intentional Infliction of Emotional Distress

            4.  Negligence/Negligence Per Se for Breach of Mandatory Duty – Failure to Report

            5.  Negligent Hiring, Supervision, or Retention of Employee

            6.  Premises Liability

            7.  Negligent Infliction of Emotional Distress (Direct Victim)

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking allegations regarding and the prayer for punitive damages in the First Amended Complaint (¶¶29, 36, 44, 55, 78, 64, 71; Prayer ¶2) as well as the 7th cause of action (¶¶72-78). 

 

RULING: The demurrer is overruled, in part, and sustained without leave to amend, in part.  The motion to strike is moot, in part; denied, in part; and granted, without leave to amend, in part. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiff J.M.’s (Plaintiff) claim that an alleged employee of Defendant Charisma Academy I Inc. dba Granada Hills Montessori Preschool (GHMP), Defendant Noresh Colonne (Colonne), abused and assaulted Plaintiff between February 2023 and July 2024, when Plaintiff was allegedly a student in Colonne’s class at GHMP.  Defendant Noesh Hordagoda (sometimes spelled, Hordagoada) (Hordagoda) is alleged to be the owner of GHMP and Defendant Gladys Villalobos is alleged to be the Director of GHMP.  (FAC ¶14).

 

The operative First Amended Complaint names GHMP, Colonne, Hordagoda and Villalobos as Defendants and alleges the following causes of action: (1) Assault (against Colonne, GHMP and Does 1-50; (2) Battery (against Colonne, GHMP and Does 1-50); (3) Intentional Infliction of Emotional Distress (against Colonne, GHMP and Does 1-50); (4) Negligence and Negligence Per Se for Breach of Mandatory Duty – Failure to Report (against GHMP, Hordagoda, Villalobos and Does 1-50); (5) Negligent Hiring, Supervision, or Retention of Employee (against GHMP, Hordagoda, Villalobos and Does 1-50); (6) Premises Liability (against GHMP and Does 1-50) and (7) Negligent Infliction of Emotional Distress (Direct Victim) (against all defendants).

After meet and confer efforts failed to resolve the issues GHMP, Hordagoda and Villalobos have with the First Amended Complaint, on 1/17/25, these defendants (collectively, Defendants) filed and served the instant demurrer to the 1st, 2nd, 3rd, 5th, 6th and 7th causes of action in the First Amended Complaint on the ground that the First Amended Complaint fails to allege sufficient facts to state the foregoing causes of action.  (See Kolesin Decl.); CCP 430.10(e).  The demurrer as to the 5th cause of action appears to be only on behalf of Hordagoda and Villalobos.  Defendants also filed and served a motion to strike which seeks an order striking allegations regarding and the prayer for punitive damages in the First Amended Complaint as well as the 7th cause of action.  Plaintiff has opposed the demurrer and motion to strike.  Defendants have not filed replies to the oppositions.

 

ANALYSIS

 

DEMURRER

 

Standard on Demurrer

 

In ruling on a demurrer, the court treats all facts in the complaint as true.  Blank (1985) 39 C3d 311, 318.  A demurrer should be sustained when the facts pleaded do not support the cause of action alleged or the complaint fails to plead all of the elements necessary to support the cause of action.  Evans (2006) 38 C4th 1, 6. 

 

When a complaint is successfully challenged on demurrer, the responding party has the burden to show how the pleading can be amended to cure the defects.  See Association of Community Organizations for Reform Now (1995) 41 CA4th 298, 302.  If there is a reasonable possibility that the defect in the complaint can be cured, a demurrer should not be sustained without leave to amend.  Citizens for Open Access etc. Tide, Inc. (1998) 60 CA4th 1053, 1063; Schifando (2003) 31 C4th 1074, 1081.  If the defects cannot be cured, the court may sustain the demurrer without leave to amend.  Campbell (2005) 35 C4th 311, 320. 

 

1st cause of action – Assault & 2nd cause of action – Battery

 

An assault is the unlawful intent by a person to inflict immediate injury on another who is present.  Plotnik (2012) 208 CA4th 1590, 1603-1604.  A battery is an intentional and offensive touching of a person who has not consented to the touching.  Conte (2003) 107 CA4th 1260, 1266.

 

Under the theory of respondeat superior, an employer, such as GHMP, can be held liable for assault and/or battery committed by its agent or employee when the misconduct was committed within the scope of the authority of the agent or employee and in the course of employment.  See McChristian (1946) 75 CA2d 249, 255.  An employer may be vicariously liable for willful, malicious, even criminal acts, of an employee that are deemed to be committed within the scope of employment, even though the employer has not authorized such acts.  Lisa M. (1995) 12 C4th 291, 296-97.  “An act is within the scope of employment if the employment predictably creates the risk that employees will commit intentional torts of the type for which liability is sought.”  Samantha B. (2022) 77 CA5th 85, 107 citing Lisa M., supra at 299.  The allegations in the First Amended Complaint indicate that the conduct that forms the bases of the assault and battery claims arises out of how Colonne conducted herself in the classroom, including how she disciplined Plaintiff and other students, in the presence of others, including teacher’s aides.  (See FAC ¶¶8-12).   

 

Alternatively, an employer may be liable for an employee’s act where the employer authorized the tortious act or subsequently ratified an originally unauthorized tort.  C.R. (2009) 169 CA4th 1094, 1110-1111.  Liability based on ratification is generally imposed where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.  Id.  The failure to discharge an employee who has committed misconduct may be evidence of ratification.  Id.  Whether an employer has ratified an employee’s conduct is generally a question of fact.  Id.  Plaintiff has alleged that GHMP, through Hordagoda and Villalobos, ratified the alleged misconduct of Colonne by approving of such conduct while it occurred, and afterwards, with their words, actions and inactions.  (See FAC ¶¶13-18, 26, 32). 

 

Based on the foregoing, Plaintiff has alleged sufficient facts to state the 1st cause of action for Assault and the 2nd cause of action for Battery against GHMP. 

 

3rd cause of action – Intentional Infliction of Emotional Distress

 

The elements of a cause of action for Intentional Infliction of Emotional Distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.  Christensen (1991) 54 C3d 868, 903. 

 

Contrary to Defendants’ assertion, the First Amended Complaint includes sufficient facts to support a finding that the alleged misconduct was directed at Plaintiff, as well as all of the other students who witnessed and/or experienced the misconduct of Colonne.  (See FAC ¶¶8-35).  

 

As noted above, Plaintiff has alleged sufficient facts to hold GHMP liable for intentional infliction of emotional distress under a respondeat superior theory of liability and/or on the basis that GHMP ratified the alleged outrageous misconduct of Colonne.

 

As such, the 3rd cause of action for Intentional Infliction of Emotional Distress is sufficiently pled against GHMP. 

 

5th cause of action – Negligent Hiring, Supervision and/or Retention of Employee

 

As noted above, although this cause of action is alleged against GHMP, Hordagoda and Villalobos, the demurrer seemingly only challenges the claim as against Hordagoda and Villalobos.  (See Demurrer, p.11:16-p.12:18).  As against Hordagoda and Villalobos, Defendants argue that Plaintiff conflates the liability of GHMP with the individual liability of Hordagoda and Villalobos under a claim for negligent hiring, supervision and/or retention of an employee.  Defendants note that the only way Hordagoda and Villalobos could be held personally liable under the 5th cause of action would be under a theory of alter ego liability which is not alleged in the First Amended Complaint.  See Riddle (1959) 51 C2d 574, 580; (First Amended Complaint, generally).

 

In the opposition, Plaintiff does not refute the foregoing and even cites authority for the proposition that “an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.”  (See Opposition, p.14:10-11 citing Doe (1996) 50 CA4th 1038, 1054 and Opposition, p.14:12-23).  Plaintiff alleges that Colonne was an employee of GHMP, not Hordagoda and/or Villalobos.  (FAC ¶3).  The remainder of Plaintiff’s argument with regard to the 5th cause of action seems to be that in order to establish negligent hiring, supervision and retention as against GHMP, Plaintiff must include the misconduct of Hordagoda and Villalobos because GHMP can only act through its employees/agents.  (See Opposition, p.15:1-9).  However, Plaintiff fails to address how Hordagoda and/or Villalobos can be held personally/individually liable under the 5th cause of action.

 

As such, Plaintiff has failed to allege sufficient facts to state the 5th cause of action for Negligent Hiring, Supervision and Retention of Employee against Hordagoda and Villalobos. 

 

6th cause of action – Premises Liability

 

The elements of a premises liability cause of action are: (1) the defendant owned, possessed or controlled the  property , (2) the defendant was negligent in the use or maintenance of the property, (3) plaintiff was harmed, and (4) defendant’s negligent in the use or maintenance of the property was a substantial factor in causing plaintiff’s harm.  CACI 1000; Kesner (2016) 1 C5th 1132, 1158.

 

As evidenced by the cases cited in the opposition, a premises liability cause of action is based on a defective and/or dangerous condition of the property itself.  (See Opposition p.15:12-24 citing Castellon (2013) 220 CA4th 994, 998 (plaintiff fell on concrete stairs); Ortega (2001) 26 C4th 1200, 1205 (plaintiff slipped on puddle of milk); McDaniel (1990) 220 CA3d 1, 7 (hole in fence on defendant’s property leading to creek where child almost drowned).  The other cases cited by Plaintiff, Doe v. United States Youth Soccer Association, Inc. (2017) 8 CA5th 1118, 1132, 1135 and Doe v. Lawndale Elementary School District (2021) 72 CA5th 113, 132, did not include a claim for premises liability.  Rather, the former concerned claims for negligence and willful misconduct and the latter addressed claims for negligent supervision of student; negligent hiring, supervision and retention of instructor; and breach of duty to report suspected child abuse.

 

Plaintiff has not alleged any defective or dangerous condition of the physical property of GHMP.  Rather, based on the allegations in the First Amended Complaint and the argument in the opposition, the claim appears to be duplicative of the negligent hiring, supervision and retention claim against GHMP.  As such, Plaintiff has failed to allege sufficient facts to state the 6th cause of action for Premises Liability against GHMP.

 

7th cause of action – Negligent Infliction of Emotional Distress

 

Negligent infliction of emotional distress is not a separate cause of action, but a negligence claim which allows a plaintiff to recover damages for emotional distress even if there are no other injuries.  See Castouras (2010) 181 CA4th 856, 876; Molien (1980) 27 C3d 916, 928.  Plaintiff includes “mental pain and suffering, emotional distress, [and] costs of psychological care and treatment” as damages in the 4th cause of action for Negligence and Negligence Per Se against Defendants (which the demurrer does not challenge).  (See FAC ¶54).  The 7th cause of action is unnecessarily duplicative of the 4th cause of action.

 

As such, Plaintiff has failed to allege sufficient facts to state a separate cause of action for Negligent Infliction of Emotional Distress against Defendants. 

 

MOTION TO STRIKE

 

Defendants seek to strike allegations regarding and the prayer for punitive damages in relation to the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th causes of action, as well as the entire 7th cause of action.

 

The request to strike the punitive damage allegations in the 6th and 7th cause of action as well as the request to strike the entire 7th cause of action are moot based on the ruling on the demurrers to those causes of action.  The request to strike the punitive allegations in the 5th cause of action as against Hordagoda and Villalobos is also moot based on the ruling on the demurrer to that cause of action.

 

The request to strike the allegations regarding punitive damages in the 1st, 2nd and 3rd causes of action is denied.  For the same reasons the First Amended Complaint sufficiently alleges these causes of action against GHMP, it sufficiently states a claim for punitive damages against GHMP.  See Civil Code 3294(a)-(c).  In other words, Plaintiff has alleged the owner of GHMP, Hordagoda, and the Director of GHMP, Villalobos authorized and/or ratified the alleged intentional misconduct of Colonne which forms the basis of the 1st, 2nd and 3rd causes of action. 

 

The request to strike the allegations regarding punitive damages in the 4th cause of action and in the 5th cause of action as against GHMP is granted.  The 4th and 5th causes of action are based on alleged negligent conduct by Defendants which by its nature does not support the imposition of punitive damages under the circumstances. 

 

CONCLUSION

 

The demurrer is overruled as to the 1st, 2nd and 3rd causes of action.

 

The demurrer is sustained without leave to amend as to the 5th cause of action as against  Defendants Noesh Hordagoda and Gladys Villalobos and overruled as against Defendant Charisma Academy I Inc. dba Granada Hills Montessori Preschool. 

 

The demurrer is sustained without leave to amend as to the 6th and 7th causes of action.

 

The motion to strike is moot as to the request to strike ¶¶64 (as to Hordagoda and Villalobos), 71, and 78 and the entire 7th cause of action (¶¶72-78) due to the ruling on the demurrer. 

 

The motion to strike is denied as to ¶¶29, 36, 44 and the prayer for punitive damages (Prayer ¶2).

 

The motion to strike is granted, without leave to amend, as to ¶¶55 and 64 (as to GHMP).

 

While leave to amend is to be liberally granted, Plaintiff has failed to establish how the defects in the 5th cause of action (as to Hordagoda and Villalobos), the 6th cause of action, 7th cause of action, and the claims for punitive damages in relation to the 4th cause of action and 5th cause of action (as to GHMP), which appear to be fatal, can be cured by amendment. 

 

Answer is due within 30 days.

 

The Court notes that Defendants have improperly filed their motion to strike in the same document as the demurrer.  In the future, even if reserved together, the demurrer and motion to strike should be filed as separate documents. 

 

  

 

 

 

 

 

 

 

THE MOTION TO STRIKE STARTS AT pdf 19 – NOTE THAT IT SHOULD BE A SEPARATELY FILED DOCUMENT