Judge Ronald F. Frank, Case Number: 23TRCV01206, Date: 2024-09-03 Tentative Ruling

The Complaint is based on Plaintiffs’ allegation that on April 18, 2021, minor Plaintiffs, Dominique Green, Keenan Louis Jr., KC Louis, Kasen Louis, Lilly Collins, and Tariq Bealey, were enjoying their time at the pool of the Subject Hotel. (Complaint, ¶ 11.) The Complaint contends that Defendant, Brett Morales, was intoxicated and began to harass the minor Plaintiffs, Dominique Green, Keenan Louis Jr., KC Louis, Kasen Louis, Lilly Collins, and Tariq Bealey. (Complaint, ¶ 12.) Plaintiffs allege that Defendant, Brett Morales, pushed Plaintiff, Dominique Green into the deep end of the pool of the Subject Hotel. (Complaint, ¶ 13.) The Complaint contends that Plaintiff, Dominique Green was six (6) years old at the time of the incident, has special needs, has asthma, and did not know how to swim at the time of the incident. (Complaint, ¶ 14.) Thereafter, Plaintiff, Keenan Louis Jr., jumped into the pool to save Plaintiff, Dominique Green. (Complaint, ¶ 15.) The Complaint alleges that Plaintiff, Dominique Green and Keenan Louis Jr both suffered from an asthma attack and anxiety as a result of the incident. (Complaint, ¶ 16.)

Plaintiffs further allege that Plaintiff, KC Louis, went to the hotel room in which Plaintiffs were staying to find Plaintiffs, Stacy Collins and La Tonia Jackson. (Complaint, ¶ 17.) Plaintiffs, Stacy Collins and La Tonia Jackson note that they went to the pool of the Subject Hotel and were informed of what occurred by another family who witnessed the incident. (Complaint, ¶ 17.) The complaint notes that when Plaintiffs, Stacy Collins and La Tonia Jackson arrived at the pool, they saw Plaintiffs, Kasen Louis and Tariq Bealey in the pool when Kasen Louis and Tariq Bealey informed them that they were in the pool when Defendant, Brett Morales told them to jump into the pool and drown themselves. (Complaint, ¶ 18.) Further, Plaintiffs allege that Plaintiffs Stacey Collins and La Tonia Jackson, confronted Defendant, Brett Morales, and asked him why he began harassing the children. (Complaint, ¶ 19.) At that time, Plaintiffs allege that Defendant, Brett Morales began directing racial slurs toward Plaintiffs in response. (Complaint, ¶ 19.)

Next, the Plaintiffs note that Plaintiff, Stacy Collins called Plaintiff, La Kita Elliot, the mother of Plaintiff, Dominique Green, and asked her to come to the subject hotel, where she arrived shortly after. (Complaint, ¶ 20.) Plaintiffs contend that that Plaintiff, La Tonia Jackson reported the incident to the Torrance Police Department. (Complaint, ¶ 21.) The complaint asserts that when the Torrance Police Department arrived at the hotel pool, they arrested Defendant, Brett Morales for child endangerment, but that he was ultimately released on bail. (Complaint, ¶ 22.) As a result of the incident, Plaintiffs allege that they incurred various expenses, including medical costs, and other costs. (Complaint, ¶ 23.) Plaintiffs assert that they still have emotional scarring due to the incident, and that each of the minor plaintiffs have become afraid when adults get near to them when at pools. (Complaint, ¶ 23.)

Plaintiffs assert that management and ownership of the subject hotel did not place adequate safeguards to protect clients and/or patrons from such injuries as the one Plaintiffs had sustained. (Complaint, ¶ 25.) Plaintiffs further allege that Defendants actions before, during, and after Plaintiffs’ injuries, including Management and Ownership’s authorization of staff members to inflict undue harm upon Plaintiffs, shows that Defendants have a pattern and culture of extreme indifference and reckless disregard for the value of human life and the rights of their clients and/or patrons. (Complaint, ¶ 25.)

Now, Defendants, Residence Inn by Marriott, LLC [erroneously sued as Marriott International, Inc.], and Torrance Inn JV, LLC [erroneously sued as Residence Inn by Marriott Los Angeles Torrance/Redondo Beach] (“Demurring Defendants”) have filed a demurrer and motion to strike portions of the complaint.

B. Procedural

On July 24, 2024, Demurring Defendants filed a demurrer and motion to strike. On August 19, 2024, Plaintiffs filed opposition briefs to both motions. On August 26, 2024, Demurring Defendants filed reply briefs to both oppositions.

II. ANALYSIS

Demurrer

Legal Standard

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿

¿¿¿

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿

Discussion

Demurring Defendants demur to Plaintiffs’ complaint on the grounds that they argue Plaintiffs first, second, third, fourth, and fifth causes of action fail to state facts sufficient to constitute a cause of action against Demurring Defendants.

Assault and Battery

First, Demurring Defendants argue that Plaintiffs do not allege facts supporting their assault and battery causes of action. “The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

“‘California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting a tort.¿ “Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.”¿ [Citation.]’¿ [Citation.]”¿ (Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 879.)¿ However, “[m]ere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting.¿ [Citation.]¿ ‘As a general rule, one owes no duty to control the conduct of another . . .’ [Citation.]” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.)

Plaintiffs’ Complaint alleges that the deliberate choice of the Subject Hotel owner and Subject Hotel manager, who were both acting as an agent for Defendants failed to remedy the situation with Brett Morales and ultimately injured Plaintiffs, which hurt Plaintiffs and placed Plaintiffs in great fear for their safety and security. (Complaint, ¶ 33.) Further, Plaintiffs also allege that the deliberate choice of the Subject Hotel owner and Subject Hotel manager, who were both acting as an agent for Defendants to not remedy the situation with Brett Morales that led him to forcefully pushing Plaintiffs, which hurt Plaintiffs and placed Plaintiffs in great fear for their safety and security. (Complaint, ¶ 33.) Next, Plaintiffs assert that the deliberate choice of the Subject Hotel owner and Subject Hotel manager, who were both acting as an agent for Defendants’, to not remedy the situation with Brett Morales which resulted in him grabbing Plaintiffs by their hair and their person, which hurt Plaintiffs and placed Plaintiffs in great fear for their safety and security. Lastly, Plaintiffs allege that the deliberate choice of the Subject Hotel owner and Subject Hotel manager, who were both acting as an agent for Defendants’ to not remedy the situation with Brett Morales, which forced Plaintiffs to remain in the pool. (Complaint, ¶ 33.) In the Court’s view, these conclusionary allegations of Hotel employees acting as the “agents” or Mr. Morales require more factual detail. Do plaintiffs allege that the Hotel employees knew or should have known that Mr. Morales would act as he did, or did they have prior knowledge that he had mistreated other hotel guests, and were the owner and manager even on the premises on the day of the incident such that they could have acted to remedy the situation? The Court will grant leave to amend to see if greater factual detail as to these matters can truthfully be alleged.

The Court notes that Plaintiffs’ Complaint does not contain facts that the Demurring Defendants gave substantial assistance or encouragement to Brett Morales to engage in his tortious conduct nor does the Complaint contain facts that the Demurring Defendants gave substantial assistance to Brett Morales and that their own conduct, separately considered, constituted a breach of duty to Plaintiffs. Instead, the Complaint focuses on authorization or ratification, which do not constitute elements of aiding and abetting in the alleged assault and battery done by Brett Morales. As noted above, “[m]ere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.)¿Thus, as pleaded, the complaint fails to allege causes of action for either assault or battery against Demurring Defendants. The demurrer is SUSTAINED with thirty (30) days leave to amend.

Violation of the Tom Bane Civil Rights Act

Next, Demurring Defendants argue that Plaintiffs do not allege facts to support their second cause of action for violation of the Tom Bane Civil Rights Act. The elements of a claim for violations of the Tom Bane Civil Rights Act are (1) the defendant interfered with or attempted to interfere with the plaintiff’s constitutional or statutory rights by threatening or committing violent acts; (2) the plaintiff reasonably believed that if he or she exercised his or her constitutional rights the defendant would commit violence against him or her or his or her property, or the defendant injured the plaintiff or his or her property to prevent him or her from exercising his or her constitutional rights or retaliated against the plaintiff for having exercised his or her constitutional rights; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Civ. Code, § 52.1; Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p. 882.)

At first blush, this Court notes that the Complaint is uncertain as to the actions or inactions of Demurring Defendants, and what Brett Morales relationship is to the Demurring Defendants. Did Brett Morales work for Demurring Defendants or was he merely another guest at the Subject Hotel? Further, Plaintiffs’ allegations up until the second cause of action allege that Demurring Defendants ratified or authorized Brett Morales’ conduct, but at paragraph 32, alleges that Plaintiffs were injured, punched, grabbed by their person, forcefully pushed, and forcefully remained in the pool, among other things, by Brett Morales, and the Subject Hotel owner and manager, who were allegedly acting as an agent and employee for Defendants. (Complaint, ¶ 32.) Do plaintiffs allege that the Subject Hotel owner and manager were engaging in their own tortious assault and battery, or whether Plaintiff has included this allegation believing that their first cause of action established that Demurring Defendants were liable for tortious activity through aiding and abetting. This alone is sufficient to sustain the demurrer; however, this Court also notes that Plaintiffs have failed to explain which constitutional or statutory rights Demurring Defendants interfered with by threatening or committing violent acts. Further, Plaintiffs’ Complaint fails to meet the other required elements of this cause of action. Moreover, Plaintiffs do not sufficiently allege that Demurring Defendants threatened or did commit acts of violence against Plaintiffs. Thus, the demurrer is SUSTAINED with thirty (30) days leave to amend.

Third, Demurring Defendants argue that Plaintiffs cannot maintain their third cause of action for negligence. In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed.¿ He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

Whether a duty of care exists is a question of law to be determined by a case-by-case basis.” (Elizarraras v. L.A. Private Security Services, Inc. (2003) 108 Cal.App.4th 237, 242.) The proprietor of a business establishment is not an insurer for the safety of his invitees but is required to take reasonable care with regard to their safety.(Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.) This generally includes a “duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.”(Id; see also, Ann M. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.)

In defining the duty of the premises owners, “foreseeability plays a very significant role, ‘but a court’s task – in determining ‘duty’ – is not to decide whether a particular plaintiff’s injury was reasonably foreseeably in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately be imposed on the negligent party.’”¿ ([Citation.]¿ Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 (italics in original).) In circumstances where third party criminal conduct is involved, “an extraordinarily high degree of foreseeability is required to impose a duty on the landowner, in part because it is difficult if not impossible in today’s society to predict when a criminal might strike.”¿ (Garcia v. Paramount Citrus Ass’n, Inc. (2008) 164 Cal.App.4th 1448, 1457.) The Court places the emphasis on the question of foreseeability on “specific, rather than more general facts of which a defendant was or should have been aware.” (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 957.)

As noted above, Plaintiffs’ Complaint is uncertain, and certainly not specific as to the causes of action of Demurring Defendants’ claimed involvement. For example, Plaintiff alleges that Defendants breached their duties when they intentionally and recklessly did acts that were objected to by Plaintiffs and therefore resulted in offensive contact with their person, including: The decision of the Subject Hotel owner and manager to allow Brett Morales to engage in negligent acts such as forcefully pushing Plaintiffs, grabbing Plaintiffs by their person, and injuring plaintiffs. (Complaint, ¶ 41.) The Complaint is devoid of any specific allegations of that illustrate exactly what Demurring Defendants did to “allow” such conduct by Brett Morales. As noted above, were the owner and manager even at the premises that day? Were they aware of the alleged misconduct before or when it was occurring? Was Mr. Morales an employee of the Hotel or was he another guest or was he an interloper? Without more, Plaintiffs may not maintain a cause of action for negligence against Demurring Defendants as to a third-party’s criminal acts.

Negligent Hiring, Training, Supervision, and Retention of Employees

Fourth, Demurring Defendants argue that Plaintiffs may not maintain their fourth cause of action. The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Plaintiffs’ Complaint asserts that at the time of hiring, the security guards, manager, owner, and employees, that oversaw the incident in question and the pool area where Plaintiffs were injured, had certain characteristics that would make them unsuitable for the position. (Complaint, ¶ 58.) Plaintiffs further allege that said characteristics caused Plaintiffs’ injuries, and Defendants knew or should have known that they were unfit and incompetent to perform the duties for which they were hired. (Complaint, ¶ 58.) Certainly – this Court notes that these allegations are far too uncertain to maintain a cause of action for negligent hiring, training, supervision, and retention. Which security guard, manager, owner, or employee was supposed to act? Did they witness the alleged tortious conduct of Brett Morales? How were said individuals supposed to act? Did anything make these individuals unable to act? Were the individuals alerted to the incident and failed to do anything? The Complaint leaves the Court with many questions. Without more specificity, Plaintiffs may not maintain their fourth cause of action. The demurrer is SUSTAINED with thirty (30) days leave to amend.

Intentional Infliction of Emotional Distress

Lastly, Demurring Defendants argue that Plaintiffs may not maintain their fifth cause of action for IIED as against them. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

As with the assault and battery causes of action above, Plaintiffs have failed to allege sufficient facts to allege that Demurring Defendants aided and abetted Plaintiffs in Brett Morales’ tortious activity. For those same reasons, the fifth cause of action is SUSTAINED on demurrer with thirty (30) days leave to amend.

Motion to Strike

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false improper matter, or has not been drawn or filed in conformity with laws.(Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Id., § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Civil Code section 3294, subdivision (a) authorizes punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice.”

“Malice [is defined as] 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 for the rights and safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294, subd. (c)(2).) “Fraud” is “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)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “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.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) 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.)

To plead a “willful and conscious disregard of the rights of others,” a plaintiff need only allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) However, the definition of malice also requires that the conduct be despicable. “'Despicable conduct' has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as '[having] the character of outrage frequently associated with crime.”' (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) In cases involving conduct performed without intent to harm, a finding of malice requires proof by clear and convincing evidence that defendant's tortious wrong amounted to despicable conduct and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)