Judge: Robert C. Longstreth, Case: 37-2022-00040958-CU-PO-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00040958-CU-PO-CTL DOE VS MORALES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/22/2023

Defendant Bashir Investments, Inc. dba UBreakiFix's Demurrer to Plaintiffs' First Amended Complaint (ROA 25) is OVERRULED IN PART and SUSTAINED IN PART, with leave to amend as to the second and third causes of action.

As to the first, fourth, and fifth causes of action for general negligence, breach of Civil Code sections 1708.8 and 1708.85, and intentional intrusion into private affairs, respectively, the demurrer is overruled.

Defendant asserts it cannot be held liable for the acts of its former employee, Defendant Jose Morales, because the employee was not acting within the course and scope of his employment.

'The connection or causal nexus required for respondeat superior liability is the tort must have been engendered by or arise from the work.' (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.) 'The required connection has been described as (1) the incident leading to injury must be an outgrowth of the employment; (2) the risk of tortious injury inherent in the working environment; (3) the risk of tortious injury is typical of or broadly incidental to the enterprise the employer has undertaken; or (4) the tort was, in a general way, foreseeable from the employee's duties.' (Ibid., internal quotes and brackets omitted.).' '[A]n employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.' (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297.) Here, Plaintiffs allege Defendant had a policy of requiring customers to unlock their phones as a condition of providing repair, and that this policy 'could result in employee mischief.' (FAC at GN-1.) Plaintiffs also allege Defendant knew its policy 'could foreseeably result in accessing a person's private information,' that Defendant required its employees to follow this unlock policy 'without adequate training, supervision, control, and monitoring to prevent unauthorized access and distribution,' and that Defendant knew its employees 'did access said photos and videos with know (sic) frequency and used sexually explicit photos and videos for prurient interests and sexual gratification.' (Id. at 8:9-15.) The court concludes the causal link between the alleged torts and the employee's work is adequately and plausibly alleged here.

As to the second cause of action for breach of contract, the demurrer is sustained with leave to amend.

(Code Civ. Proc. § 430.10(e).) Although Plaintiff Jane Doe asserts Defendant breached its repair contract between them, it is not clear how any of the factual allegations constitutes a breach. Plaintiffs reference the Song Beverly Act, but even if the court were to broadly construe the breach of contract claim to potentially include a claim for violation of the Song Beverly Act, it is not clear how any of the Calendar No.: Event ID:  TENTATIVE RULINGS

3041517  8 CASE NUMBER: CASE TITLE:  DOE VS MORALES [IMAGED]  37-2022-00040958-CU-PO-CTL allegations of breach would amount to a breach of any warranty, whether express, implied, or statutory.

As to the third cause of action for fraud, the demurrer is sustained with leave to amend. (Code Civ.

Proc. § 430.10(e).) Plaintiffs have not pled their fraud claim against this demurring Defendant with sufficient specificity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Plaintiffs attempt to clarify in their opposition that they are only pleading a claim for negligent misrepresentation against Bashir, although the First Amended Complaint alleges otherwise. (FAC at ¶ FR-2(c).) Regardless, the specific facts of negligent misrepresentation are not adequately alleged against Bashir. In addition, as noted in Defendant's motion to strike, page 7 of Plaintiffs' First Amended Complaint is missing, which presumably would be page 2 of Judicial Council form PLD-C-001(3). As a result of this missing page, several elements of the fraud claim are not alleged at all.

If plaintiffs wish to amend their pleading as to the second and third causes of action, they must do so on or before April 26, 2024.

Defendant's Motion to Strike Plaintiffs' First Amended Complaint (ROA 27) is DENIED.

As to Defendant's request to strike the entire paragraph alleging damages as to Plaintiffs' negligence cause of action (Ntc. at No. 2), the motion is denied. Defendant asserts this cause of action is not properly stated against it, but given that the court is overruling Defendant's demurrer on these grounds, there is no basis to strike Plaintiffs' alleged negligence damages.

As to Defendant's request to strike 'Various damages' allegations in the First Amended Complaint (Ntc.

at Nos. 3, 4 (directed to Page 8), 5, and 6), the motion is denied. Plaintiffs do not clearly respond to this in their omnibus opposition to the demurrer and motion to strike. Nonetheless, the notice of motion is procedurally defective as to the request to strike these allegations. 'A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.' (Cal. R. Court, rule 3.1322(a).) Here, Defendant has not quoted the portions it seeks to strike, nor is it clear that Defendant is attempting to strike an entire paragraph. (See Ntc. at Nos. 3, 4 (directed to Page 8), 5, and 6.) As to Defendant's request to strike 'any damages' on what is 'presumably' page 7 on the FAC, the motion is denied. (Ntc. at No. 4 (directed to Page 7).) Defendant acknowledges there is no page 7. (Id.

at fn. 1.) The court cannot strike what does not exist. Further, the court has granted Plaintiffs leave to amend their fraud cause of action in light of the missing page 7.

As to Defendant's request to strike Plaintiffs' punitive damages allegations (Ntc. at No. 7), the motion is denied as moot, given the court's ruling sustaining Defendant's demurrer to Plaintiffs' fraud claim with leave to amend.

For the reasons already set forth above, Defendant's request to strike Plaintiffs' general prayer for compensatory and punitive damages as to the entire First Amended Complaint (Ntc. at No. 1) is denied as well.

The court has exercised its discretion to consider Plaintiffs' late-filed opposition and Defendant's late-filed reply. However, the parties are to comply with all deadlines. The court may its discretion to refuse to consider late motion papers in the future absent a showing of good cause for the violation.

(Cal. R. Court, rule 3.1300(d).) The Court notes as well that it appears that Plaintiffs have not filed the confidential information form required by Civil Code section 1708.85(f)(1) for pseudonymous filings. Plaintiffs should address this situation forthwith.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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