Judge: Michael E. Whitaker, Case: 24SMCV02142, Date: 2024-12-05 Tentative Ruling

Case Number: 24SMCV02142    Hearing Date: December 5, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from an alleged physical attack at a café.  On May 7, 2024, Plaintiff David Sharpe (“Plaintiff”) filed suit against Defendants Hinano Café (“Hinano”) and Constantine A. McDemas as Trustee of the McDemas Family Trust (“McDemas”), alleging six causes of action for (1) assault; (2) battery; (3) intentional infliction of emotional distress; (4) negligence; (5) negligent hiring, supervision and retention; and (6) premises liability.  The first three causes of action are alleged against Doe defendants only.

Hinano demurs to the fourth, fifth, and sixth causes of action for failure to state facts to constitute a cause of action and for uncertainty pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.  Hinano also moves to strike the phrase “Hinano Café” from the allegations of the complaint.  Both motions are unopposed.

PLAINTIFF’S FIRST AMENDED COMPLAINT

A party may amend its pleading once without leave of the court if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.  (Code Civ. Proc. § 472.)  Further, “the filing of an amended complaint renders moot a demurrer to the original complaint.”  (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.)

The hearing in this matter is set for December 5, 2024, and there are court holidays on Thursday, November 28 and Friday, November 29, making Opposition papers due on November 20.  On November 21, in lieu of filing an opposition, Plaintiff filed a First Amended Complaint. 

Because Plaintiff’s First Amended Complaint was filed a day late, the Court cannot accept it as filed and operative.  Therefore, Hinano’s demurrer to the original complaint is not mooted by virtue of the late-filed First Amended Complaint.

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 testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See 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.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Hinano argues in the memorandum of points and authorities that the fourth, fifth, and sixth causes of action are uncertain, Hinano does not demonstrate that any portions of the Complaint are so bad that Hinano cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it. 

The Court thus declines to sustain Hinano’s demurrer on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury.”  (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) 

“An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit.”  (Phillips v. TLC Plumbing, Inc., supra, 172 Cal.App.4th at p. 1139.)  “Liability for negligent hiring . . . is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.”  (Ibid.)  “Negligence liability will be imposed on an employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.”  (Ibid.)  The two elements necessary to establish a duty in negligent hiring and retention cases are (1) an employment relationship; and (2) foreseeability of injury.  (Id. at p. 1142.)

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, Plaintiff alleges:

7. The location of the incident(s) giving rise to this action occurred at or near 15 Washington Blvd., Venice, CA 90292 , in the State of California, County of Los Angeles (“The Subject Premises”).

8. On or about October 28, 2023, Plaintiff was a patron at the subject premises. As Plaintiff was seated in the patio area of the subject premises, he was approached and verbally harassed by Defendants DOES 1 TO 5. Defendants DOES 1 TO 5, suddenly and without warning, physically attacked and assaulted Plaintiff with such force that Plaintiff suffered injuries and damages.

9. The force of Defendants DOES 1 TO 5’s assault on Plaintiff's body caused Plaintiff to suffer physical injuries and damages.

10. At no time before, during or after the attack did Plaintiff batter or attempt to batter Defendants DOES 1 TO 5. 11. As a result of the aforementioned conduct, Plaintiff was physically and psychologically damaged, incurred medical bills, sustained disability and had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.

[…]

33. Defendants, and each of them, had an affirmative legal duty to use due care for the protection of Plaintiff against unreasonable risk of harm.

34. Defendants, and each of them, formed a special relationship between the patrons and/or guests and subject premises resulting in the affirmative duty on Defendants’ employees to take all reasonable steps to protect the occupants of the subject premises.

35. Additionally, because of the special relationship between Plaintiff and the subject premises, Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 11 TO 100, inclusive, had a duty to control Defendants DOES 1 TO 5 and protect Plaintiff from physical and mental harm.

36. Defendants, and each of them, breached their duty of care for the protection of Plaintiff when Defendants DOES 1 TO 5 in the presence of others, aggressively approached Plaintiff in a harmful manner such that it reasonably appeared that Defendants DOES 1 TO 5 was about to carry out the threat; Defendants DOES 1 TO 5 physically assaulted Plaintiff with such force that Plaintiff suffered injuries and damages.

37. As a direct result of the breach of their affirmative duty to protect Plaintiff from physical or psychological injury while at the subject premises, the malfeasance and/or nonfeasance of Defendants, and each of them, was the proximate or legal cause of Plaintiff’s injuries.

38. The conduct of Defendants, and each of them, was a substantial factor in causing Plaintiff’s harm.

39. As a result of the conduct of Defendants, and each of them, the Plaintiff was physically and psychologically damaged, incurred medical bills, sustained disability and had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.

[…]

41. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 11 TO 100, inclusive, knew or should have known that Defendants DOES 6 TO 10 were incompetent and unfit and that their incompetence and unfitness created a particular risk to others, including Plaintiff.

42. Defendants DOES 6 TO 10’s incompetence and unfitness harmed Plaintiff.

43. As a result of the conduct of Defendants, and each of them, the Plaintiff was physically and psychologically damaged, incurred medical bills, sustained disability and had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.

44. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 11 TO 100, inclusive, negligence in hiring, supervising and/or retaining Defendants DOES 1 TO 5 was a substantial factor in causing Plaintiff’s harm.

[…]

46. Premises liability is based upon general negligence principles addressed above. However, an owner’s duty is to keep the property in a reasonably safe condition as any unsafe condition will foreseeably cause injury.

47. An owner’s duty includes the duty to make reasonable inspections of the subject premises to guard against possible dangers, to make the property reasonably safe for intended or foreseeable users and uses, and to warn of latent or concealed dangers.

48. At all times herein mentioned, Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, developed, designed, constructed, owned, operated, maintained, had a duty to maintain, managed and/or controlled the subject premises.

49. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, negligently developed, designed, constructed, maintained, managed, and/or controlled the subject premises so as to expose persons, including Plaintiff, to an unreasonable risk of harm.

50. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, in committing their negligent acts and/or omissions with respect to the subject premises, should have reasonably foreseen that such acts and/or omissions would expose Plaintiff, and similarly situated persons, to an unreasonable risk of harm.

51. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, knew of the dangerous condition of the subject premises, including but not limited to the failing to control, monitor and/or supervise Defendants DOES 1 TO 5 and protect Plaintiff from physical and mental harm.

52. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, knew of the dangerous condition on the subject premises and consciously disregarded the danger anyway.

53. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, so negligently and carelessly owned, controlled, supervised, maintained, managed, designed, used and/or developed the subject premises so to cause the premises to be in a dangerous, defective, hazardous, unsafe condition and location proximately causing damages and injuries to Plaintiff who was lawfully on the subject premises.

54. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, as the owner(s) and/or operator(s) of the subject premises as herein alleged, were negligent in that, among other things, they failed to exercise due care in the ownership, design, development, use, operation, management and maintenance of the subject premises to ensure that patrons and/or guests were not subject to an unreasonable risk of harm while at the subject premises.

55. As a proximate result of the negligence of Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, Plaintiff was hurt and injured in his health, strength and activity, sustaining injury and shock to his person, all of which have caused and continue to cause Plaintiff pain and suffering. As a result of the negligence of Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, and the resulting incident, Plaintiff sustained severe and serious injuries to his person. As a result of such injuries, Plaintiff has suffered general damages according to proof.

56. As a further proximate result of the negligence of Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, Plaintiff has incurred and will continue to incur expenses for medical, hospital and other related expenses in an amount to be shown according to proof.

57. As a result of the negligent acts of Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, Plaintiff sustained injury and shock to his body, all of which have caused and continue to cause Plaintiff physical and emotional pain and suffering.

58. On or about October 28, 2023, Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 11 TO 100, inclusive, breached their duty to Plaintiff as the said Defendants carelessly and negligently owned, rented, managed, leased, supervised, inspected, operated, maintained, controlled, built, constructed, used, developed and/or designed the subject premises such that it was in a dangerous, defective and unsafe condition, in conscious disregard for the risk of harm to invitees thereon. By reason of said carelessness, recklessness, negligence and conscious disregard of Defendants, and each of them, said premises was unsafe and dangerous to the general public, and specifically Plaintiff.

59. Defendants HINANO CAFE, an unknown entity; CONSTANTINE A. MCDEMAS AS TRUSTEE OF THE MCDEMAS FAMILY TRUST; and DOES 6 TO 100, inclusive, breached their duty to Plaintiff when the said defendants failed to warn Plaintiff of said dangerous, defective and unsafe condition, although said Defendants, and each of them, knew or should have known of said condition.

60. As a direct and legal result of said carelessness, recklessness, negligence and conscious disregard of Defendants, included but not limited to the design, defects at the subject premises, Plaintiff was harmed and sustained serious injuries and damages, including but not limited to, medical expenses, lost wages, pain and suffering and serious personal injury.

(Complaint ¶¶ 7-10, 33-60.)

            Hinano demurs on the ground that the address provided in paragraph 7 of the Complaint, 15 Washington Blvd., Venice CA 90292, is not Hinano Café’s address, and in fact the attack occurred off premises in the street in front of other stores adjacent to Hinano Café. 

            Whether the attack actually occurred in the patio area of Hinano Café, or whether Hinano owed a duty of care to protect Plaintiff from the attack are factual questions that go beyond the four corners of the Complaint, to be resolved at later stages of the litigation.

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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)       

Here, because Court overrules Hinano’s demurrer in its entirety, as discussed above, the Court similarly declines to strike from the Complaint the references to “Hinano Café.” 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Hinano’s Demurrer and denies Hinano’s Motion to Strike.   Accordingly, the Court orders Hinano to file and serve an Answer to the Complaint on or before January 3, 2025. 

Further, for the reasons stated above, on its own motion, the Court will strike the filing of the Amended Complaint on November 21, 2024. 

Further, on the Court’s own motion, the Court continues the Case Management Conference from January 29, 2025 to March 3, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

Hinano shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED:  December 5, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court