Judge: Serena R. Murillo, Case: 22STCV27630, Date: 2022-12-12 Tentative Ruling
Case Number: 22STCV27630 Hearing Date: December 12, 2022 Dept: 29
TENTATIVE
Defendant
Romauld Ansermert’s demurrer is OVERRULED in part and SUSTAINED in part. The demurrer is
SUSTAINED as to the cause of action for intentional infliction of emotional
distress, and OVERRULED as to the rest of the causes of action (negligence;
battery; NIED; assault; and false imprisonment). Plaintiff is granted 30 days
leave to amend the complaint.
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.)
Demurrers
for uncertainty are strictly construed, because discovery can be used for
clarification, and apply where defendants cannot reasonably determine what
issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14
Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter
Group 2011) ¶¶7:85-7:86.) “A demurrer for uncertainty will not lie where the
ambiguous facts alleged are presumptively within the knowledge of the demurring
party.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.)
Meet and Confer
The demurrer is
not accompanied by the declaration of defense
counsel and thus
does not satisfy the meet and confer requirements. (CCP section 430.41(a).) Nevertheless, as this is not a
basis to overrule the demurrer, the Court will address the merits.
Discussion
Failure to Allege Sufficient Facts and Uncertainty
Defendant
Ansermet demurs to the first, third, fourth, fifth, sixth and seventh causes of
action in the complaint, arguing that they do not state facts sufficient
to constitute a cause of action
and are uncertain.
First Cause of Action for Negligence
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.)
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)).) In order to impose
liability on a property owner for a dangerous condition, the owner must have
either actual or constructive knowledge of the dangerous condition or have been
able to discover the condition by the exercise of ordinary care. (Ortega,
supra, 26 Cal.4th at 1206.)
The complaint alleges that Defendants chased down Plaintiff in their
mutual apartment lobby with their dog and proceeded to attack him, making
physical contact by punching the Plaintiff in the face and placing him into a
headlock, resulting in head, neck, back, shoulder, wrist, and foot pain. Defendants
knew or should have known that Plaintiff would suffer foreseeable injuries,
damages and harm as a result of Defendants’ failure to exercise reasonable
ordinary care as alleged above. Defendants chased Plaintiff with violent
pretenses. Defendants proceeded to punch Plaintiff, causing visible injury to
Plaintiff’s face.
The Court finds
that these allegations are ultimate facts and are thus sufficient to plead
general negligence against Defendant. The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal. 4th
531, 550.) Any further clarifications as to the allegations and claims
can be resolved during discovery. Further, the complaint is
not uncertain as ultimate facts have been pled. As such, the demurrer to the
first cause of action for negligence is overruled.
Fourth
Cause of Action for Intentional Infliction of Emotional Distress and Fifth
Cause of Action for Negligent Infliction of Emotional Distress
The elements of
an intentional infliction of emotional distress cause of action are: (1)
extreme and 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. (Moncada v. West Coast Quartz Corp. (2013) 221
Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999,
1009.) To satisfy the element of extreme and outrageous conduct,
defendant’s conduct “‘must be so extreme as to exceed all bounds of that
usually tolerated in a civilized society.’” (Moncada, supra, 221
Cal.App.4th at 780 (quoting Tererice v. Blue Cross
of California (1989) 209 Cal.App.3d 878, 883).)
“[I]t is not
enough that the defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress, or even that
his conduct has been characterized by ‘malice,’ or a degree of aggravation
which would entitle the plaintiff to punitive damages for another tort.”
(Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability
has been found only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.”
(Id.) While there is no bright-line as to what constitutes
outrageous conduct and thus this involves a case-by-case analysis, courts can
determine whether conduct was sufficiently outrageous at the demurrer
stage. (Id. at 494.)
Defendant argues the Complaint
makes a conclusory allegation that Defendant’s actions were both outrageous and
intentional, but does not allege any facts that rise to the level of outrageousness.
The complaint alleges that Defendants
acted in an extreme and outrageous manner by, among other things, harassing
Plaintiff, verbally and physically abusing Plaintiff, harassing Plaintiff while
under the influence of alcohol, making Plaintiff feel unsafe in his domicile,
and getting into a physical altercation with Plaintiff.
Plaintiff’s
allegations are insufficient to state a cause of action for intentional
infliction of emotional distress. Plaintiff has failed to sufficiently
plead extreme and outrageous behavior and thus intentional infliction of
emotional distress against Defendant. As such the demurrer to the
fourth cause of action for IIED is SUSTAINED with 30 days leave to amend.
Defendant
has not made any argument regarding the NIED claim and thus, the demurrer is
overruled as to the fifth cause of action for NIED.
Third and Sixth Causes of
Action for Battery and Assault
“A battery is any intentional, unlawful and harmful contact by one
person with the person of another.” (Daley v. Regents of University of
California (2019) 39 Cal.App.5th 595, 602 [citation and quotation
omitted].) “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 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.” (Yun Hee
So v. Sook Ja Shin (2013) 212 Cal.App.4th 652,
668-69.)
Defendant argues that the nature
of Plaintiff’s injury is not identified - indeed no body part, no location, or
absolutely anything else is referenced. Defendant argues that one cannot tell
if the allegation is simply that Plaintiff was punched or was there an actual
physical injury. However, all throughout the complaint, Plaintiff alleges he
suffered injuries. This is sufficient to withstand demurrer.
As such, the demurrer is overruled
as to the causes of action for assault and battery.
Defendant
also argues the cause of action is impermissibly duplicative of the Intentional
Infliction of Emotional Distress cause of action. However, the Court does not
address this argument as the demurrer is sustained to the cause of action for
IIED.
Seventh Cause
of Action for False Imprisonment
The tort of false
imprisonment consists of the “nonconsensual, intentional confinement of a
person, without lawful privilege, for an appreciable length of time, however
short.” (Scofield v. Critical Air Medicine, Inc. (1996) 45
Cal.App.4th 990, 1001, bold emphasis added.) Many cases state that the “length
of time can be as brief as 15 minutes.” (Ibid.) However, the statement
is dictum, because the cases involved confinements of more than 15 minutes. In Fermino
v. Fedco, Inc. (1994) 7 Cal.4th 701, for example, the confinement was for
more than an hour. (Id. at 707.) Likewise, in Alterauge v. Los
Angeles Turf Club (1950) 97 Cal.App.2d 735, the plaintiff was detained for
about 15 minutes. (Id. at 736.) The court had no reason to address
shorter time periods in either case. Indeed, at least one federal court
applying California law in this area concluded that there “does not appear to
be any case law that sets a floor as to what constitutes an appreciable period
of time.” (Robles v. Agreserves, Inc. (E.D. Cal. 2016) 158 F.Supp.3d
952, 976.) This court also identified California cases in which the period of
confinement appeared to be “significantly less than 15 minutes.” (Id. at
976-977 [citing cases].)
Defendant argues
that the cause of action for false imprisonment fails because Plaintiff does
not allege he was confined and Plaintiff does not allege any particular period
of time that his confinement lasted.
Plaintiff alleges in the complaint that he
was walking away from Defendants with the intention of deescalating the
situation but Defendants intentionally deprived Plaintiff of his freedom of
movement by force and physical barrier when Defendants put Plaintiff in a
headlock, and by threat of force when the Defendants surrounded Plaintiff,
preventing him from moving.
Thus, contrary to
Defendant’s argument, Plaintiff alleges he was confined when Defendant put him
in a headlock. While Plaintiff does not allege any particular period of time
that his confinement lasted, the Court cannot conclude that the confinement
alleged did not last for an “appreciable length of time, however short.”
The demurrer is
overruled as to the false imprisonment cause of action.
Punitive
Damages
Defendant also
demurs as to the claim for punitive damages.
However,
Defendant improperly filed a demurrer as to punitive damages because it is not
a cause of action. A demurrer can be used
to challenge a particular cause of action or defense in a
pleading. (CCP §
430.50.) Punitive damages allegations are not subject
to a demurrer. “There is no cause of action for punitive damages. Punitive
or exemplary damages are remedies available to a party who can plead and prove
the facts and circumstances [set forth in Civil Code section 32944] .... ‘Punitive
damages are merely incident to a cause of action, and can never constitute the
basis thereof.’ [quoting from Gold v. Los Angeles Democratic League
(1975) 49 Cal.App.3d 365, 373, fn. 3].” (Hilliard v. A.H. Robins Co. (1983)
148 Cal.App.3d 374, 391.). (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 163.) Defendant may
file a motion to strike if it so chooses.
Conclusion
Based on the foregoing, Defendant’s demurrer is OVERRULED in part and
SUSTAINED in part. The demurrer is SUSTAINED as to the cause of action for
intentional infliction of emotional distress, and OVERRULED as to the rest of
the causes of action. Plaintiff is granted 30 days leave to amend the
complaint.