Judge: Michael E. Whitaker, Case: 21STCV21954, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCV21954    Hearing Date: January 9, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Raymond Hassanlou (Plaintiff) sued Defendants City of Los Angeles, Lance Tamanaha, Philip Ciano, and Imad Musleh (collectively, Defendants) based on a verbal argument which occurred at a City golf course between Plaintiff and the golf course employees named in the suit.  Defendants move for a common law motion for judgment on the pleadings of the Second Amended Complaint (SAC).  Plaintiff opposes the motion.  Defendants reply.

Preliminarily, Plaintiff asserts that Defendants’ motion is untimely as the hearing for the motion will be heard only thirteen days before trial in violation of Code of Civil Procedure section 438, subdivision (e).  Code of Civil Procedure section 438, subdivision (e) provides that no motion for judgment on the pleadings may be made “if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Code Civ. Proc., §¿438, subd. (e).) 

However, a non-statutory motion for judgment on the pleadings may be made any time before or during trial.  (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)  As the Court construes this as a non-statutory motion for judgment on the pleadings, the time limitations of Code of Civil Procedure section 438 are inapplicable.  Accordingly, the Court finds that the motion is timely.

JUDICIAL NOTICE

            The Court grants Defendants’ request for judicial notice of (1) the Los Angeles Municipal Code section 63.44, and (2) the City’s Rules and Regulations for Los Angeles City Golf Courses and the City’s Golfer Code of Conduct pursuant to Evidence Code section 452, subdivision (b).

ANALYSIS

A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

Here, Defendants request a judgement on the pleadings concerning Plaintiff’s entire SAC which includes causes of action for negligent infliction of emotional distress (NIED) and vicarious liability, both of which rely on an underlying negligence claim.  The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  Further, “NIED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages.  The distinction between the “bystander” and the “direct victim” cases is found in the source of the duty owed by the defendant to the plaintiff.  “Bystander” claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a “direct victim” arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff.”  (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [cleaned up].) 

Defendants attest that Plaintiff has failed to plead that the individual golf course employee breached an applicable duty of care to Plaintiff during the incident in question and has thus failed to state sufficient causes of action for NIED and vicarious liability against Defendants.

Defendants argue that the alleged conduct of the golf course employees amounted solely to enforcement of the City’s Rules and Regulations and Golfer Code of Conduct and thus cannot, as a matter of law, constitute a breach of any general duty of care applicable to the golf course employees.  Instead, Defendants contend Plaintiff concedes that during the incident in question he sought to instruct the gold course employees regarding their job performance and duties, ignoring that City of Los Angeles management is responsible for instructing staff in the performance of such employees’ duties.  And Defendants assert that Plaintiff’s allegations indicate that he was breaking the City’s Rules and Regulations and Golfer Code of Conduct.  Thus, the golf course employees’ reactions to Plaintiff cannot be construed as a breach of any duty of care.  The following are the rules which Defendants assert Plaintiff concedes in the SAC that he violated:

“[A]ll golfers and/or visitors at Los Angeles City Golf facilities are expected to conduct themselves in a manner that:

· Is free of discrimination or any form of harassing behavior to fellow golfers, visitors, or staff.

· Show the utmost respect and dignity to fellow golfers, visitors, and staff.

· Does not damage the character, integrity, good will, property, and community view of L.A. City Golf facilities and/or its staff.

· Demonstrates an understanding that golfers and visitors have no authority to instruct staff in job performance and duties.

· Understands that the City of Los Angeles management is responsible for instructing staff in the performance of their duties.”

(Request for Judicial Notice, Exhibit B, p. 2.)

            Defendants further highlight the following terms which they believe establishes that the conduct of the golf course employees amounted to justified enforcement of the applicable golf course rules:

“Any golfer or visitor found to be in violation of the City of Los Angeles Golfer Code of Conduct may:

· Have his/her Player Card revoked.

· Result in being removed from the facility.

· Have his/her playing privileges suspended.”

(Request for Judicial Notice, Exhibit B, p. 2.)

In opposition, Plaintiff asserts that he did pled sufficient facts and alleged a breach of duty to support the NIED and vicarious liability claims against Defendants.  Plaintiff’s SAC alleges in pertinent part the following:

• . . . After Mr. Musleh needlessly and improperly interjected his unsolicited stance on Mr. Hassanlou’s use of the course, Mr. Hassanlou requested to speak with a Supervisor.

• When the supervisor Lance Tamanaha, (hereafter “Mr. Tamanaha”) came out, Mr. Hassanlou requested they step to the side and discuss the events to prevent further escalation. However, Mr. Tamanaha refused and started to threaten Mr. Hassanlou.

• Mr. Tamanaha stated that Mr. Hassanlou, “argued with his employees so he cannot rent a cart and is not allowed to play at all.” Mr. Tamanaha further threatened to call the police and to record Mr. Hassanlou on video, all in front of Mr. Hassanlou’s minor children, Cyrus and Darius and other visitors of the golf course.

• Mr. Hassanlou asked Mr. Tamanaha why he felt police presence was necessary and Mr. Tamanaha merely restated that Mr. Hassanlou, Cyrus and Darius were prohibited from playing. Mr. Tamanaha did not state that Mr. Hassanlou, Cyrus or Darius had violated any of Encino Golf course’s rules or regulations prior to refusing to allow them to play.

(SAC, ¶¶ 28-31.)

• The unjustified prohibition of access to the golf course by the three city employees was not enough for them. Instead, they went on to abuse Mr. Hassanlou by threatening to call the police in front of his minor children with reckless disregard for the harm they were likely causing to two naive, innocent and sensitive children, and in turn to a father whose sole concern is their well-being. An ordinary person who is being threatened with police presence would experience serious emotional distress in such a situation.

(SAC, ¶ 35.)

• . . . Defendants breached their own course’s code of conduct by conducting themselves inappropriately in front of Mr. Hassanlou’s minor children and by making unprovoked threats against Plaintiff to call the police in front of his minor children.

(SAC, ¶ 39.)

• Defendants’ (a) uncalled for and needless threat to call the police (b) unjustified refusal to rent a golf cart (c) prohibiting Mr. Hassanlou from using the golf course despite Mr. Hassanlou’s reservation and payment of a fee (d) abhorrent and disrespectful conduct in front of Mr. Hassanlou’s impressionable minor children (e) discrimination against Mr. Hassanlou based on a prior unrelated incident constituted a breach of duty.

(SAC, ¶ 44.)

• Defendants were acting within the scope of their employment when they (a) without provocation, threatened to call the police on the Plaintiff in front of his children and other golf course visitors (b) unjustifiably refused to rent a golf cart to Plaintiff and his family (c) prohibited Plaintiff from using the golf course despite Mr. Hassanlou’s reservation and payment of a fee (d) abhorrently and disrespectfully conducted themselves in front of Mr. Hassanlou’s impressionable minor children (e) discriminated against Mr. Hassanlou based on a prior unrelated incident constituted a breach of duty.

(SAC, ¶ 62.)

            Based on the foregoing allegations, the Court finds Plaintiff has sufficiently pled a breach of duty based on the golf course employees’ described conduct of escalating the situation with unprovoked threats to record Plaintiff and call the police, all in front of Plaintiff’s children and fellow golf course patrons.  While it can be assumed from the factual allegations that the golf course employees were attempting to enforce the City’s Rules and Regulations and the Golfer Code of Conduct, there remains the question of whether their attempts to enforce such rules and code amounted to negligent mishandling of the situation. 

            For pleading purposes, Plaintiff has pled sufficient ultimate facts to state causes of action for NIED and vicarious liability against Defendants.   

CONCLUSION AND ORDER 

Therefore, the Court denies Defendants’ common law motion for judgment on the pleadings.  Defendants shall provide notice of the Court’s ruling and file a proof of service of such.