Judge: Robert B. Broadbelt, Case: 19STCV44140, Date: 2022-12-08 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV44140    Hearing Date: December 8, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Simple Bar, Inc.

RESPONDING PARTY:       Plaintiff Haroutioun Aivazian

(1)   Demurrer to Complaint

(2)   Motion to Strike Portions of Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer and motion to strike.

BACKGROUND

Plaintiff David Dallakian (“Dallakian”) filed this action against Simple Bar, Inc. (“Simple Bar”) and Doe defendants on December 6, 2019.  Dallakian filed his operative First Amended Complaint on April 9, 2020 against Simple Bar and additional defendant Adroit Private Security, Inc. based on an alleged assault of Dallakian at A Simple Bar on November 15, 2019. 

Plaintiff Haroutioun Aivazian (“Aivazian”) filed a complaint against Simple Bar on November 12, 2021, based on an alleged assault of Aivazian during the same November 15, 2019 altercation. 

The parties stipulated, and the court ordered on May 31, 2022, that the actions filed by Dallakian and Aivazian are consolidated.

Defendant Simple Bar now moves the court for an order (1) sustaining its demurrer to plaintiff Aivazian’s second, third, and fourth causes of action, and (2) striking Aivazian’s prayer for punitive damages and all related allegations.

REQUEST FOR JUDICIAL NOTICE

The court denies Simple Bar’s requests for judicial notice, filed on December 1, 2022, as improper attempts to introduce new evidence in reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

DEMURRER

The court sustains Simple Bar’s demurrer to Aivazian’s second cause of action for premises liability because it does not state facts sufficient to constitute a cause of action since Aivazian does not allege (1) a dangerous condition existed on Simple Bar’s property, or (2) that Simple bar did not take reasonable steps to secure its property against criminal acts by third parties (i.e., the stranger), because this cause of action appears to be based on the injury suffered by Aivazian as a result of the attack by Simple Bar’s security guard (Compl., ¶ 35).  (Code Civ. Proc., § 430.10, subd. (e); Delgado v. American Multi-Cinema (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“Broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”]; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229.)

The court overrules Simple Bar’s demurrer to Aivazian’s third cause of action for assault and battery because it states facts sufficient to constitute a cause of action since Aivazian alleges facts establishing that Simple Bar is liable for the acts of its security guards, whom Aivazian alleges (1) were “agents” of the bar (Compl., ¶¶ 8, 16), and (2) were acting within the scope of their employment (Compl., ¶ 8).  (Code Civ. Proc., § 430.10, subd. (e); Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106 [“An allegation of agency constitutes an averment of ultimate fact, which we accept as true on a demurrer”].)

The court overrules Simple Bar’s demurrer to Aivazian’s fourth cause of action for intentional infliction of emotional distress because it states facts sufficient to constitute a cause of action since the Complaint alleges that the alleged assault of Aivazian (Compl., ¶ 15) was committed by one of Simple Bar’s security guards, who was acting as an agent of Simple Bar and within the scope of their employment (Compl., ¶ 8).  (Code Civ. Proc., § 430.10, subd. (e).) 

MOTION TO STRIKE

Simple Bar moves the court for an order striking from the Complaint (1) Aivazian’s prayer for punitive damages, and (2) paragraphs 20, 41, and 50 of the Complaint.  

The court grants Simple Bar’s motion to strike the prayer for punitive damages and paragraphs 20, 41, and 50.

The court finds that the allegations in Aivazian’s Complaint do not sufficiently allege that Simple Bar, as a corporate employer, may be held liable for punitive damages because Aivazian does not allege facts establishing (1) Simple Bar had advance knowledge of the unfitness of the employees and employed them with a conscious disregard of the rights and safety of others, or authorized or ratified the wrongful conduct for which punitive damages are sought, or (2) the advance knowledge and conscious disregard, authorization, or ratification was on the part of an officer, director, or managing agent of Simple Bar.  (Civ. Code, § 3294, subd. (b).)  The court notes that Aivazian argues that (1) the court denied “an almost identical motion” filed by Simple Bar as to plaintiff Dallakian, and (2) Aivazian alleged that Simple Bar’s “general manager stood by and did nothing to prevent the violent act of its employee/agent.”  (Opp., pp. 2:7-10, 5:9-17.)  However, Dallakian’s First Amended Complaint contained allegations establishing that Simple Bar authorized security guards with known violent propensities to work at the subject premises, and that Simple Bar’s general manager authorized the assault on Dallakian by failing to stop the assault.  Aivazian’s Complaint, by contrast, does not include the same factual allegations with regard to Simple Bar.

Finally, the court notes that Simple Bar’s memorandum of points and authorities filed in connection with its motion to strike appears to request that the court strike Aivazian’s prayer for attorney’s fees.  (Mot., p. 7:13-14.)  Simple Bar presents no argument explaining why Aivazian’s request for attorney’s fees should be stricken, and the court therefore denies any request to strike Aivazian’s prayer for attorney’s fees and costs.  (Code Civ. Proc., § 436.)

ORDER

            The court sustains Simple Bar, Inc.’s demurrer to plaintiff Haroutioun Aivazian’s second cause of action for premises liability. 

            The court overrules Simple Bar, Inc.’s demurrer to plaintiff Haroutioun Aivazian’s third cause of action for assault and battery and fourth cause of action for intentional infliction of emotional distress.

            The court grants Simple Bar, Inc.’s motion to strike from Haroutioun Aivazian’s Complaint (1) the prayer for punitive damages, and (2) paragraphs 20, 41, and 50.

The court grants Haroutioun Aivazian 20 days leave to file a First Amended Complaint to cure the deficiencies discussed in this order.

IT IS SO ORDERED.

DATED:  December 8, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court