Judge: Serena R. Murillo, Case: 22STCV27345, Date: 2023-04-10 Tentative Ruling
Case Number: 22STCV27345 Hearing Date: April 10, 2023 Dept: 29
TENTATIVE
Defendant Ikea U.S., Inc., erroneously sued as Ikea Property, Inc.’s unopposed demurrer is
OVERRULED in part and SUSTAINED with 30 days leave to amend in part. The
demurrer is overruled as to the premises liability and negligence causes of
action but sustained as to the cause of action for intentional tort. The motion
to strike is GRANTED with 30 days leave to amend.
Legal
Standard
A demurrer for sufficiency tests whether the complaint states a
cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent
on the face of the pleading or via proper judicial notice. (Donabedian v.
Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially noticed.
(Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer
hearing is whether the complaint, as it stands, unconnected with extraneous
matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
Any party, within the time allowed to respond to a pleading may
serve and file a notice of motion to strike the whole or any part thereof. (Code Civ.
Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (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; Stafford v.
Shultz (1954) 42 Cal.2d 767, 782.)
Meet and
Confer
The
demurrer and motion to strike are accompanied by the declaration of Steven
Renick, which satisfies the meet and confer requirements. (Code Civ. Proc.
§§ 430.41(a) and
435.5(a).)
Discussion
I.
Demurrer
A.
Premises Liability
Defendant demurs
to the complaint, first arguing that the first cause of action for premises
liability fails to allege sufficient facts to constitute a cause of action.
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 (citing Ortega v. Kmart Corp. (2001) 26
Cal.4th 1200, 1205; Civil Code § 1714(a)).) Those who own, possess, or control property generally have a
duty to exercise ordinary care in managing the property¿to¿avoid exposing
others to an unreasonable risk of harm. (Annocki¿v. Peterson
Enterprises, LLC¿(2014) 232
Cal.App.4th 32, 37.) The existence and scope of duty are legal questions
for the court. (Id. at p. 36.) If there is a condition that
poses a danger to customers and others on the premises, the property owner is
“under a duty to exercise ordinary care either to make the condition reasonably
safe for their use or to give a warning adequate to enable them to avoid the
harm.” (Bridgman v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443,
446.)
Defendant argues
that the allegations that
an employee struck the plaintiff with shopping carts that the employee was
pushing does not describe a “condition on the property [that] created an
unreasonable risk of harm” resulting in injury to the plaintiff. However,
Defendant has not presented any authority to support its argument that the
employee’s striking of Plaintiff with the carts cannot constitute a dangerous condition
on Defendant’s property and has further failed to elaborate on this argument.
As such, the
demurrer is overruled as to the cause of action for premises liability.
B.
Negligence
Defendant also demurs on the ground that the second cause of
action for negligence fails to state sufficient facts to constitute a cause of
action.
The elements for negligence
are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of
duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara
v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292,
318.) In California, negligence may be pleaded in general
terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)
“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.)
Defendant argues that in the third cause of action, Plaintiff
alleges that the incident occurred when Defendant’s employee intentionally
crashed the carts into Plaintiff, and thus, the allegations are for an
intentional tort, and not negligence.
However, when a pleader is in doubt about what actually
occurred or what can be established by the evidence, the modern practice allows
that party to plead in the alternative and make inconsistent allegations. (Citing Adams v. Paul (1995)
11 Cal.4th 583, 593; Crowley v. Katleman (1994) 8 Cal.4th 666, 690–691 [factually
and legally inconsistent theories allowed]; Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402.)
Thus, the
demurrer is overruled as to the cause of action for negligence.
C.
Vicarious Liability of an Intentional Tort
“Under the doctrine of respondeat
superior, ‘an employer is vicariously liable for the torts of its employees
committed within the scope of the employment.’” (Montague v. AMN
Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521 [citation
omitted]). But an employer is not strictly liable for an employee’s
intentional torts. For an employer to be liable for an intentional tort
of an employee, the employee’s act must have a causal nexus to the employee’s
work. (Id. [citation omitted]). Such an inquiry is grounded
on an examination of the foreseeability of the alleged misconduct. “The
conduct of an employee falls within the scope of his or her employment if the
conduct either (1) is required by or incidental to the employee's duties, or
(2) it is reasonably foreseeable in light of the employer's business.” (Id.
at 522 [citation omitted]).
Plaintiff
alleges in the vicarious liability cause of action that Defendant Marroquin was
an agent and/or employee of Defendant Ikea. Defendant Ikea argues it cannot be
liable for Defendant Marroquin’s intentional conduct because the employee acted outside the
course and scope of employment. The Court
agrees. It is unforeseeable that an employee would batter a customer by
striking the customer with shopping carts. This
is not the kind of conduct that is reasonably foreseeable in light of business
conducted by a defendant owning a furniture store. Therefore, this
cause of action does not survive Defendant’s demurrer.
As such,
the demurrer to the cause of action for intentional tort is SUSTAINED.
II.
Motion to Strike Punitive Damages
To state a claim for punitive damages under Civil Code section
3294, a plaintiff must allege specific facts showing that the defendant
has been guilty of malice, oppression or fraud. (Smith v. Superior Court
(1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be
pled with specificity; conclusory allegations devoid of any factual assertions
are insufficient. (Id.) A motion to strike may lie where the facts alleged, if
proven, would not support a finding that the defendant acted with malice, fraud
or oppression. (Turman v. Turning Point of Central California (2010) 191
Cal. App. 4th 53, 63.)
“Malice” is defined in section 3294(c)(1) as “conduct which is
intended by the defendant to cause injury” or “despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as
“despicable conduct subjecting a person to cruel and unjust hardship in
conscious disregard of that person’s rights.” The term “despicable” has been
defined in the case law as actions that are “base,” “vile,” or “contemptible.”
(See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing,
Inc. (2000) 78 Cal. App. 4th 847, 891.)
To prove that a defendant acted with “willful and conscious
disregard of the rights or safety of others,” it is not enough to prove
negligence, gross negligence or even recklessness. (Dawes v. Superior Court
(1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts
demonstrating that “the defendant acted in such an outrageous and reprehensible
manner that the jury could infer that he [or she] knowingly disregarded the
substantial certainty of injury to others.” (Id. at 90). Further, the
allegations must be sufficient for a reasonable jury to conclude that
Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)
An employer shall not be liable for punitive damages based on the
acts of an employee, unless the employer had advance knowledge of the unfitness
of the employee and employed him or her with a conscious disregard of the
rights or safety of others or authorized or ratified the wrongful conduct for
which damages are awarded, or was personally guilty of oppression, fraud, or
malice. With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing agent of the
corporation. (Civ. Code, § 3294, subd. (b).)
The Court finds that insufficient facts have been
pled to assert punitive damages against Defendant Ikea for its employee’s
conduct as there are no facts alleged in the complaint that an officer,
director, or managing agent of Defendant had advance knowledge of the unfitness
of the employee and employed him with a conscious disregard of the rights or
safety of others, or authorized or ratified the employee’s conduct. While
Plaintiff has alleged in the complaint that an officer, director or managing
agent of Defendant authorized, consented or ratified the employee’s conduct,
there are no facts to support this allegation and it is therefore
conclusory. Moreover, there are no allegations that Defendant was personally
guilty of oppression, fraud, or malice. As such, the motion to strike is
granted.
Conclusion
Accordingly,
Defendant’s demurrer is OVERRULED in part and SUSTAINED with 30 days leave to
amend in part. The demurrer is overruled as to the premises liability and
negligence causes of action but sustained as to the cause of action for
intentional tort. The motion to strike is GRANTED with 30 days leave to amend.
Moving party
is ordered to give notice.