SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Nancy Pogue (“Plaintiff”) filed a First Amended Complaint (“FAC”) against Defendants Mauricio Christopher Torres (“Torres”), Patrick Bennet (“Bennet”), and Target Corporation (“Target”) for damages arising from allegations of assault and battery. Plaintiff alleges she was on Target’s property when Torres grabbed Plaintiff’s purse, and the two struggled over the purse. Plaintiff alleges Target’s employee witnessed the ordeal and did not prevent or assist Plaintiff in the attack. Plaintiff sets forth five causes of action for (1) Assault (against Torres), (2) Battery (against Torres), (3) Negligence (against Target) (4) Intentional Infliction of Emotional Distress (“IIED”) (against Target and Torres), and (5)  Premises Liability (against Target). The FAC includes a prayer for punitive damages. 

Target now demurs to the FAC and moves to strike punitive damages, arguing the fourth cause of action for IIED by Plaintiff fails to state sufficient facts to constitute a claim against it and the factual allegations do not support a claim for punitive damages.  

Plaintiff opposes the motion, and Target filed a reply. 

 

II. Request for Judicial Notice 

 Plaintiff requests the Court to take judicial notice of (1) The Long Beach Police Department’s crime reports for the subject premises located at 5760 E. 7th St., Long Beach, CA 90803 for the time period of January 1, 2017 to August 29, 2020, and (2) 2020 Annual Report filed with the Securities and Exchange Commission by Defendant Target. The requests are DENIED.  

  

III. Demurrer 

A. Meet and Confer 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)  Target fulfilled this requirement prior to filing the demurrer.  (Dem. Farley Decl. ¶¶ 5-8.) 

 

B. Legal Standard 

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

 

I. Fourth Cause of Action - IIED  

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.  Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.) 

  The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”  (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].)  And again, a defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].) 

Here, regarding the IIED claims, the FAC recites the elements of IIED, and incorporates by reference the allegations of paragraphs 1 through 32. (FAC at ¶¶ 33-37.) The only facts pertinent to Target is that Target’s employee, Bennet, allegedly “witnessed the entire ordeal and did nothing to prevent or assist Plaintiff in the attack and subsequently enabled Defendant TORRES’ escape.” (Id. at ¶14.) These allegations do not constitute outrageous conduct.  Moreover, there are no allegations showing Target intended to cause emotional distress to Plaintiff beyond a conclusory allegation that its conduct “was done knowingly, willfully, and maliciously.” (Id. at ¶ 37.) This is insufficient to meet the high bar to establish severe emotional distress.  (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress]; see also Hughes (2009) 46 Cal.4th at 1051.)  The factual circumstances of this assault and battery effectuated by Torres, which occurred on Target’s premises, and alleged inaction of Target’s employee to assist Plaintiff do not rise to the level of “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.”  (Hughes (2009) 46 Cal.4th at 1051.) Plaintiff’s opposition contending that Target failed to keep its premises safe by not providing adequate security measures sounds in negligence, rather than an intentional tort.  

Based on the foregoing, Target’s demurrer to the fourth cause of action for IIED is SUSTAINED without leave to amend.   

 

 

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (CCP § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (CCP § 436.)    

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” “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.  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (Civil Code §3294.) 

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required.  Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences).  Thus, it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.  Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages.  Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.  (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)  Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)    

Here, the fourth cause of action IIED has already been sustained without leave to amend. As previously stated, the FAC’s allegations do not rise to the level of malice, fraud, or oppression, as defined by the Code.  In order to plead punitive damages, Plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity.  (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.)  This requires Plaintiff to allege sufficient facts to support conclusory allegations, which Plaintiff has not done. (Brousseau, 73 Cal.App.3d at 872 [“the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ...”].) The conduct described by Plaintiff regarding security and a failure to timely assist Plaintiff in this altercation with Torres is a claim sounding in negligence. Under California law, conduct which may be described as unreasonable or negligent generally does not satisfy the highly culpable state of mind warranting punitive damages. (In re Yahoo! Inc. Customer Data Sec. Breach Litig. (2018) 313 F. Supp. 3d 1113.) 

Accordingly, Target’s motion to strike the request for punitive damages against it is GRANTED without leave to amend.    

 

V. Conclusion 

Target’s demurrer to the fourth cause of action for IIED is sustained without leave to amend.  

The motion to strike punitive damages against Target is granted without leave to amend.