Judge: Michael E. Whitaker, Case: 21STCV42301, Date: 2022-09-16 Tentative Ruling

Case Number: 21STCV42301    Hearing Date: September 16, 2022    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 Mamie Mitchell sued Defendants Rust Movie Productions, LLC, Thomasville Pictures, LLC, Ryan Smith, and Langley Cheney (collectively, “Demurring Defendants”) based on injuries Plaintiff alleges she sustained when Defendant Alexander R. Baldwin, III (“Baldwin”) discharged a loaded gun towards Plaintiff. Demurring Defendants demur to Plaintiff’s first cause of action for assault and battery and second cause of action for intentional infliction of emotional distress (“IIED”) in Plaintiff’s second amended complaint (“SAC”).

ANALYSIS

1. DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

1. First Cause of Action: Assault and Battery

    

   Demurring Defendants contend Plaintiff’s first cause of action for assault and battery fails to allege facts sufficient to constitute a cause of action.  Specifically, Demurring Defendants argue the SAC fails to allege that Plaintiff experienced any fear or apprehension before Baldwin fired the gun, or any “unlawful act, threat, or menacing conduct” by Baldwin after he discharged the gun.  The Court notes Demurring Defendants do not present argument, and thus have not put at issue, Plaintiff’s allegations with respect to her claim for battery in the first cause of action.

    

   In opposition, Plaintiff argues paragraph 5 of the SAC sufficiently alleges Baldwin engaged in the unlawful act of endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner per New Mexico Statutes Annotated section 30-7-4, subdivision (A)(3).  Plaintiff then contends that paragraphs 7, 43-44, and 58-61 allege Baldwin’s conduct was intentional, without just cause or excuse and with utter disregard of the consequences.  Plaintiff also contends the SAC sufficiently pleads Baldwin engaged in the unlawful conduct of carrying a deadly weapon per New Mexico Statutes Annotated section 30-7-2, subdivision (A).  Finally, Plaintiff asserts paragraphs 59 and 82 of the SAC allege Baldwin’s pointing and discharge of a loaded weapon in her direction constituted an unlawful act which caused Plaintiff to reasonably believe she was in danger of being shot by a second discharge, and that Plaintiff felt the force of the gunshot sufficient to constitute the causes of action for assault and battery.

    

   Under New Mexico Statutes Annotated section 30-3-1, “[a]ssault consists of either: A. an attempt to commit a battery upon the person of another; B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or C. the use of insulting language toward another impugning his honor, delicacy or reputation.”  (N.M. Stat. Ann., § 30-3-1.)  “Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.”  (N.M. Stat. Ann., § 30-3-4.)  “While assault and battery are closely related, one may exist without the other.”  (Baca v. Velez (1992) 114 N.M. 13, 15.)

    

   New Mexico Statutes Annotated section 30-7-4 provides: “Whoever commits negligent use of a deadly weapon is guilty of a petty misdemeanor.”  (N.M. Stat. Ann., § 30-7-4.)  “Negligent use of a deadly weapon consists of…endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner[.]”  (N.M. Stat. Ann., § 30-7-4, subd. (A)(3).) 

    

   Paragraph 5 of the SAC alleges, in relevant part, as follows:

    

   Every safety protocol designed to ensure that firearms would be safely used were ignored, and actions that were taken were against all industry norms, including, without limitation, as follows:

    

   Alec Baldwin intentionally, without just cause or excuse, cocked and fired the loaded gun even though the upcoming scene to be filmed did not call for the cocking and firing of a firearm.

    

   Alec Baldwin intentionally, without just cause or excuse, fired the gun towards individuals, including Plaintiff, Ms. Hutchins, and Mr. Souza, even though protocol was not to do so.

    

   The gun was handed to Alec Baldwin by the Assistant Director. Guns are never to be handed to an actor by anyone other than the Prop Master or Armorer. Mr. Baldwin, being an industry veteran, knew that the gun in question should not have been handed to him by the Assistant Director and he also knew that he could not rely upon the Assistant Director’s representation that it was a “cold gun” and that the gun was safe to use.

    

   The industry wide safety bulletin for use of firearms mandates that all firearms are to be treated as though they are loaded because, as Alec Baldwin knew, guns are inherently dangerous weapons. Alec Baldwin should have assumed that the gun in question was loaded unless and until it was demonstrated to him or checked by him that it was not loaded. He had no right to rely upon some alleged statement by the Assistant Director that it was a “cold gun”. Mr. Baldwin cannot hide behind the Assistant Director to attempt to excuse the fact that he did not check the gun himself.

    

   Alec Baldwin, without just cause or excuse, failed to check the gun to see if the firearm was loaded.

    

   The industry norm is that the Armorer hands the gun to the Actor and demonstrates to the Actor, in this case Alec Baldwin, that the gun chambers are empty. Alec Baldwin knew that this was the norm and that it was not followed. The industry norm and safety bulletin mandates that no one shall be issued a firearm until he or she is trained in safe handling, safe use, the safety lock, and proper firing procedures. Alec Baldwin knew that these were the safety protocols and chose to ignore them.

    

   (SAC, ¶ 5.)  For pleading purposes, the Court finds the SAC alleges facts sufficient to establish Baldwin endangered the safety of others by handling or using the subject firearm in a negligent manner, constituting negligent use of a deadly weapon under New Mexico Statutes Annotated section 30-7-4. 

    

               Next, paragraph 82 of the SAC alleges,

    

   “At the time DEFENDANT BALDWIN pointed and discharged the gun, neither filming nor rehearsal had commenced. Plaintiff was standing less than four feet away from DEFENDANT BALDWIN. At the moment of discharge, Plaintiff was standing adjacent to Hutchins, who was fatally shot and killed as a result of the discharged gun. Suddenly and without warning, Plaintiff heard and felt a shocking and deafening sound from the gunshot, unlike anything she had ever heard in her life, which constituted battery upon her. The gunshot caused Plaintiff to experience pain in her ears and head and, shortly thereafter, Plaintiff began to hear loud ringing in her ears. Upon hearing and feeling the discharge from the concealed deadly weapon, Plaintiff was terrified, feared for her life, and was reasonably placed in danger of receiving a second immediate battery, specifically of being shot by DEFENDANT BALDWIN by way of a subsequent gunshot.”

    

   (SAC, ¶ 82.) For pleading purposes, the Court finds the SAC alleges facts sufficient to establish

   Baldwin’s negligent use of the firearm caused Plaintiff to reasonably believe she was in danger of receiving the immediate battery of a subsequent gunshot. 

    

   Accordingly, the Court finds the SAC alleges facts sufficient to constitute a cause of action for assault against Baldwin.

    

2. Second Cause of Action: IIED

    

   Demurring Defendants next contend Plaintiff’s second cause of action for IIED fails to allege facts sufficient to constitute both the underlying tort and Demurring Defendants’ accessory liability.

    

   In opposition, Plaintiff argues the SAC alleges sufficient facts in paragraphs 5, 59, and 91, showing Baldwin’s discharge of a loaded weapon at Plaintiff constituted conduct both extreme and outrageous under the circumstances, as well as reckless for his failure to ensure the weapon was not loaded before cocking and firing at Plaintiff and others, which caused Plaintiff severe emotional distress.

    

   To establish a claim for IIED under New Mexico law, Plaintiff must show “(1) the conduct in question was extreme and outrageous; (2) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (3) the plaintiff’s mental distress was extreme and severe; and (4) there is a causal connection between the defendant’s conduct and the claimant’s mental distress.”  (Trujillo v. Northern Rio Arriba Elec. Co-op, Inc. (2001) 131 N.M. 607, 616.)  Extreme and outrageous conduct is that which is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  (Ibid.)  The court first determines, as a threshold matter, whether the conduct may reasonably be regarded as so extreme and outrageous that it will permit recovery as a matter of law.  (Padwa v. Hadley (1999) 127 N.M. 416, 419.)  “When reasonable persons may differ on that question, it is for the jury to decide, subject to the oversight of the court.”  (Ibid.)

    

   In addition to the relevant portions of paragraph 5 cited above, paragraph 7 of the SAC alleges:

    

   “The events that led to the shooting by Mr. Baldwin of a loaded gun constituted intentional acts and/or omissions, without any just cause or excuse, on Alec Baldwin’s part or the Producers of ‘Rust’. Mr. Baldwin chose to play Russian Roulette with a loaded gun without checking it and without having the Armorer do so. His behavior and that of the Producers on ‘Rust’ were intentional acts and/or omissions, without any just cause or excuse and with utter disregard of the consequences of said acts and/or omissions. The fact that live ammunition was allowed on a movie set, that guns and ammunition were left unattended, that the gun in question was handed to Mr. Baldwin by the Assistant director who had no business doing so, the fact that safety bulletins were not promulgated or ignored, coupled with the fact that the scene in question did not call for a gun to be fired at all, makes this a case where injury or death was much more than just a possibility – it was a likely result.”

    

   (SAC, ¶ 7.) 

    

   Further, the SAC alleges, in part:

    

   “Plaintiff is informed and believes, and thereon alleges, that the first 11 days of the production were filled with a variety of safety issues that placed DEFENDANTS, including, without limitation, producers and others in control of the production, on notice that there were serious safety-related problems on the set that were endangering the cast and crew related to the use of firearms. Plaintiff is informed and believes, and thereon alleges, that, prior to the incident and because of the gross mismanagement of firearms by DEFENDANTS, including, without limitation, Rust armorist DEFENDANT GUTIERREZ-REED, live ammunition had been brought onto the filming set and guns had been misfired on set, including, without limitation, by DEFENDANT BALDWIN’S stunt double and a prop master who accidentally shot herself in the foot.

    

   Plaintiff is informed and believes, and thereon alleges, that the cart used for storing the ammunition by DEFENDANT GUTIERREZ –REED and other DEFENDANTS, including, without limitation, the gun discharged by DEFENDANT BALDWIN had been regularly left unattended and mismanaged throughout filming prior to the October 21, 2021, tragic incident. Plaintiff is further informed and believes, and thereon alleges, that DEFENDANTS knew or should have known that loaded firearms were on set before the October 21, 2021 incident because loaded firearms had been used by crew members for target practice against safety protocols that should have been in place but were not. Prior to the October 21, 2021 incident, DEFENDANTS knew or should have known about serious safety violations related to the use of firearms and live ammunition on the set because, without limitation, a number of workers had walked off the job in protest of safety concerns over filming conditions and production issues.

    

   For the purpose of, without limitation, saving money, DEFENDANTS willfully, knowingly, intentionally, and/or in utter disregard for the known harmful consequences to Plaintiff decided to ignore the known dangers associated with ammunition and/or guns on the set. As a result, DEFENDANTS decided not to search for and/or remove any live ammunition from weapons to be used on the set even after it was widely known by them that live ammunition had been introduced onto the set.”

    

   (SAC, ¶¶ 48-50.) 

    

               Finally, paragraph 91 of the SAC alleges,

    

   “As a result of DEFENDANT BALDWIN’s pointing and discharging the gun towards her, Plaintiff has suffered compensable damages including, without limitation, extreme and severe emotional distress for which she has had to employ medical treaters, including, without limitation, mental health providers for her emotional and/or physical injuries. Plaintiff was severely injured in, without limitation, her health, strength and activity and sustained serious physical trauma and shock and injury to her nervous system and person, all of which injuries have caused, and continue to cause Plaintiff extreme mental, physical and nervous pain.”

    

   (SAC, ¶ 91.)  For pleading purposes, the Court finds Plaintiff’s allegations, taken together, establish extreme and outrageous conduct on the part of Baldwin in reckless disregard of Plaintiff that caused Plaintiff extreme and severe emotional distress.  Namely, Baldwin recklessly engaged in extreme and outrageous conduct when, despite being aware requisite firearm safety precautions had been ignored and live ammunition was present on the film set, he unexpectedly cocked and fired a loaded handgun in Plaintiff’s direction without first confirming it did not contain live ammunition.  Accordingly, the Court finds the SAC alleges facts sufficient to constitute a cause of action for IIED against Baldwin.

    

3. Accessory Liability

    

   Finally, having found Plaintiff’s allegations against Baldwin to be legally sufficient with respect to the first and second causes of action, the Court turns to Plaintiffs’ allegations concerning Demurring Defendants’ accessory liability for the underlying torts.

    

    Civil liability “for harm resulting to a third person for the tortious conduct of another” may be extended where the individual “knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself.”  (Rael v. Cadena (1979) 93 N.M. 684, 684-685; accord. GCM, Inc. v. Kentucky Cent. Life Ins. Co. (1997) 124 N.M. 186, 190 [citing Rael’s adoption of Restatement (Second) of Torts Section 876, “which recognizes the liability of third persons for the tort of another if the person ‘knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself”].) 

    

               Here, to establish Demurring Defendants’ liability for assault, battery, and IIED in accordance with Rael, Plaintiff must allege that Demurring Defendants (1) knew that Baldwin was going to point and fire the loaded weapon towards Plaintiff, and (2) provided him either substantial assistance or encouragement to do so. 

    

               Demurring Defendants, pointing to the Court’s July 14, 2022 Minute Order, argue the SAC fails to allege Demurring Defendants knew Baldwin would aim and fire the loaded weapon towards Plaintiff. 

    

               In opposition, Plaintiff relies on State Farm Mutual Automobile Insurance Co. v. Baldonado (2003) 134 N.M. 197, to argue accessory liability for aiding and abetting requires a fact-specific inquiry into the third-party’s active participation in the tortious conduct, which cannot be made on demurrer.  The Court disagrees.

    

   As the Court has previously noted, State Farm addresses the specific issue of whether and under what circumstances a plaintiff in an uninsured motorist action can recover for a passenger’s intentional act within the coverage of uninsured motorist endorsements.  (See State Farm, supra, 134 N.M. at pp. 200-201 [“since ‘our uninsured motorist statute is not a no-fault statute[] [f]ault in the context of uninsured motorist recovery for a passenger’s intentional tort is ‘predicated upon the owner or operator’s active participation in or facilitation of the passenger’s commission of the harmful act”]; cf. Rael, supra, 93 N.M. at p. 684 [“civil liability for assault and battery…extends to any person who by any means aids or encourages the act”].)  The Court not only finds State Farm to once again be inapplicable, but also finds that it does not stand for the proposition that accessory liability requires a fact-specific inquiry beyond the scope of demurrer, as Plaintiff suggests.

    

               Otherwise, Plaintiff argues paragraphs 64, 66, 69, 70, 72-74, 84, and 92 of the SAC sufficiently allege Demurring Defendants, through the parties’ agency, employment, or joint venture, aided and abetted Baldwin by providing him the loaded gun, and intentionally and/or recklessly acted and/or failed to act such that their conduct constitutes aiding and abetting Baldwin’s tortious conduct.  Plaintiff does not proffer any authority for its proposition that such conduct would constitute aiding and abetting in lieu of or in addition to the Rael standard.  

    

   While Plaintiff alleges that Demurring Defendants assisted Baldwin by supplying the loaded weapon, Plaintiff’s allegations fail to establish that Demurring Defendants knew Baldwin would aim and fire the loaded weapon towards Plaintiff such that they would be jointly liable for his intentional conduct.  In fact, Plaintiff’s allegations would show the opposite to be true: the only person who knew Baldwin was going to fire the weapon was Baldwin.  (See SAC, ¶¶ 5, 52-55, 57.)  Accordingly, the Court sustains the demurrer to the first and second cause of action of action against Demurring Defendants.

    

   CONCLUSION AND ORDER

    

   Therefore, the Court sustains Demurring Defendants’ demurrer to the first and second causes of action, without leave to amend.[1]  Demurring Defendants are ordered to file and serve an answer to the second amended complaint within 20 days of the hearing.

    

   The Clerk of the Court shall provide notice of the Court’s ruling.