Judge: Michael E. Whitaker, Case: 21STCV42301, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV42301    Hearing Date: December 6, 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

MOTIONS

Plaintiff Mamie Mitchell sued Defendant David Hall (Demurring Defendant) based on injuries Plaintiff alleges she sustained when Defendant Alexander Baldwin III (Defendant Baldwin) discharged a loaded gun towards Plaintiff.  Demurring Defendant demurs to Plaintiff’s first and second causes of action in the second amended complaint (“SAC”) on the grounds of uncertainty and insufficient facts.  Demurring Defendant also moves to strike the following from Plaintiff’s SAC: (1) Plaintiff’s prayer for punitive damages, (2) citations and references to New Mexico Case Law and Statutory Authority, (3) references to agency, employment, or joint venture against Demurring Defendant, (4) prayer for civil penalties, (5) prayer for reasonable attorney’s fees, (6) prayer for pre-judgment interest, and (7) references to ultrahazardous activity. 

Plaintiff opposes motion to strike and Demurring Defendant replies to the opposition.

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.)

    

   A. First and Second Causes of Action: Assault, Battery, and IIED

    

               Demurring Defendant contends Plaintiff’s Second Amended Complaint fails to allege facts sufficient to support a cause of action for assault against Demurring Defendant because Plaintiff fails to allege facts indicating Plaintiff’s immediate apprehension of physical contact from anyone, particularly Demurring Defendant.  Further Demurring Defendant argues that because Plaintiff has failed to plead facts indicating any harmful or offensive physical contact between Plaintiff and Demurring Defendant, Plaintiff’s cause of action for battery also fails as to Demurring Defendant.  Finally, Demurring Defendants attest that Plaintiff’s second cause of action for intentional infliction of emotional distress fails as to Demurring Defendant because Plaintiff does not allege the nature, extent, and duration of the alleged emotional distress, and does not state facts sufficient to allege outrageous conduct on the part of Demurring Defendant. 

    

   Plaintiff is not contesting Demurring Defendant’s demurrer to the first cause of action for assault and battery.  (Opposition 12:6-8.)  Therefore, the Court will sustain the demurrer to the first cause of action as to Demurring Defendant. 

    

   Further, Plaintiff does not address the second cause of action for intentional infliction of emotional distress.  Thus, with respect to the IIED claim against Demurring Defendant, the Court applies the same reasoning as set forth in the Court’s ruling on September 16, 2022 as to the demurrer to the SAC filed by Defendants Rust Movie Productions, LLC, Thomasville Pictures, LLC, Ryan Smith and Langley Cheney.  (See Minute Order, September 16, 2022.)  Thus, the Court will sustain the demurrer on the Second Cause Action regarding Demurring Defendant without leave to amend. 

    

2. MOTION TO STRIKE

    

   Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

    

1. Punitive Damages

    

   In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code,

    

   (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

    

   (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

    

   Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

    

   Here, Demurring Defendant argues that Plaintiff’s allegations show an unintentional accident, rather than an action based upon malice, oppression, or fraud.  Demurring Defendant attests the only specific allegations pertaining to Demurring Defendant is that he handed the subject gun to Defendant Baldwin without knowing that the gun was loaded.  Further, Demurring Defendant highlights that he is not included in the allegations against “DEFENDANT PRODUCERS” in which Plaintiff claims they disregarded the safety of the production by choosing low-budget cost-savings measures.  The Court disagrees.

    

   For pleading purposes, the Court finds the second amended complaint alleges facts sufficient to establish despicable conduct carried out by Demurring Defendant with a willful and conscious disregard of the rights or safety of others.

    

   Plaintiff pleads the following factual allegations against “DEFENDANTS” (hereinafter, Defendants), which includes Demurring Defendant.  (See SAC, p. 2.)  Plaintiff alleges the occurrence of prior safety issues that placed Defendants on notice of serious firearms-safety-related problems on the set that endangered the cast and crew, which Defendants ignored and resulted in Defendants deciding not to search for and/or remove any live ammunition from weapons being used on the set.  (SAC, ¶¶ 48, 50.) 

    

   Specifically, Plaintiff alleges, “prior to the incident, guns had been misfired on set, including, without limitation, by [Baldwin] stunt double and a prop master who accidentally shot herself in the foot.”  (SAC, ¶ 48.)  Plaintiff also alleges the ammunition, including the gun discharged by Baldwin had regularly been left unattended throughout the filming prior to the incident, and loaded firearms had been used by crew members for target practice by crew members against safety protocols that Defendants should have, but neglected to, enforce.  (SAC, ¶ 49.)  Finally, Plaintiff alleges Defendants intentionally undertook a low budget and cost-cutting scheme that was known to create unsafe conditions for movie production crews that resulted in Demurring Defendants’ failure to ensure basic safety protocols with respect to the hazardous use of firearms.  (See SAC, ¶¶ 66, 69-71.)

    

   Further Plaintiff specifically alleges as to Demurring Defendant the following: “Against all safety protocols, standards, and practices, DEFENDANT HALLS, who was an Assistant Director and not an Armorist, handed, and was permitted to hand, DEFENDANT BALDWIN a loaded firearm that constituted a concealed deadly . . . .” (SAC, ¶¶ 55, 111.)

    

   Accordingly, the Court finds Plaintiff’s allegations in the SAC demonstrate alleged despicable conduct carried out by the Demurring Defendant with a willful and conscious disregard of the rights or safety of others sufficient to withstand a motion to strike.

    

2. New Mexico Case Law and Statutory Authority

    

   Next, Demurring Defendant seeks to strike Plaintiff’s mention of New Mexico Case law, specifically citation to Delgado v. Phelps Dodge Chino, Inc.  The Delgado case is primarily mentioned in relation to the first and second causes of action, to which this Court is prepared to sustain the demurrer as to Demurring Defendant (see above).  (See SAC, ¶¶ 39, 78, 87.)  As such, the Court finds this argument to be moot.

    

   Additionally, Demurring Defendant seeks to strike mention of New Mexico Statute 30-7-2, claiming that the criminal statute only applies to “concealed” weapons, and the gun at issue was not concealed.  New Mexico Statute 30-7-2 provides in relevant party: “Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases . . . .” 

    

   In opposition, Plaintiff attests that the weapon, at least at some relevant times, constituted a concealed deadly weapon, and thus the New Mexico criminal statue should not be stricken.  As Demurring Defendant himself highlights, before handing the gun weapon to Defendant Baldwin, Plaintiff alleges that Demurring Defendant announced it was a “cold gun,” or unloaded gun.   Based on this announcement, assumingly a majority of people thought the weapon at issue was not loaded, and thus its nature as a loaded firearm was concealed.  Further, Demurring Defendant fails to cite to case law which conclusively indicates that the circumstances surrounding the gun at issue does not constitute a concealed deadly weapon.  As such, the Court finds Plaintiff’s allegations in the SAC demonstrate the weapon at issue constitutes a concealed loaded firearm under New Mexico Statute 30-7-2 sufficient to withstand a motion to strike.

    

3. Agency, Employment, or Joint Venture

    

   Next Demurring Defendant seeks to strike reference to agency, employment, and/or joint venture theories in relation to Demurring Defendant because Plaintiff has failed to allege facts indicating Demurring Defendant was an agent or principal of, or engaged in a joint venture with, Defendant Baldwin or any of the “DEFENDANT PRODUCERS.”  The Court finds that Plaintiff’s allegation Demurring Defendant was acting in his official capacity as “Assistant Director for the film ‘Rust’” is sufficient to establish an agency, employer, or joint venturer relationship between himself and the remainder of Defendants associated with general production of the film “Rust” based on the generally known duties of an Assistant Director within the film production setting.  (SAC, ¶ 27.)  Accordingly, Plaintiff’s allegations of Demurring Defendant’s involvement in an agency or joint venturer type of relationship with any of the remaining Defendants in charge of the production, direction or logistics of the film “Rust”, are sufficient to withstand a motion to strike.

    

4. Civil Penalties and Attorneys’ Fees

    

   Further, Demurring Defendant seeks to strike Plaintiff’s prayer for civil penalties and attorneys’ fees as to Demurring Defendant, claiming Plaintiff failed to allege a basis for either remedy.  The Court agrees, as Plaintiff failed to specifically plead facts in the SAC which would support the recovery of civil penalties or attorneys’ fees, and further failed to provide a basis for these remedies in his opposition besides attesting “there is an ongoing criminal investigation” and that such a strike would be “premature.”  As such, the Court strikes Plaintiff’s prayer for civil penalties and attorneys’ fees as to Demurring Defendant.

    

5. Prejudgment Interest and Reference to “Ultrahazardous” Activity

    

   Finally Demurring Defendant seeks to strike Plaintiff’s prayer for prejudgment interest, as well as Plaintiff’s reference to Defendants’ conduct being “ultrahazardous”.  As Demurring Defendant notes in his reply,  Plaintiff fails to address these points in his opposition.  As such, the Court will assume Plaintiff concedes these points and strikes both Plaintiff’s prayer for prejudgment interest and mention of “ultrahazardous” within the SAC.

    

   CONCLUSION AND ORDER

    

   Therefore, the Court sustains Demurring Defendant’s demurrer as to the first and second causes of action (assault, battery and IIED) without leave to amend. 

    

   Additionally, the Court will grant, in part, Demurring Defendant’s motion to strike Plaintiff’s prayer for civil penalties, attorneys’ fees, and prejudgment interest, as well as references to “ultrahazardous” activity regarding Demurring Defendant.  The Court denies, in part, the balance of Demurring Defendant’s motion to strike.  

    

   Demurring Defendant shall provide notice of the Court’s rulings and file a proof of service of such.