Judge: Steven A. Ellis, Case: 23STCV26290, Date: 2024-02-20 Tentative Ruling
Case Number: 23STCV26290 Hearing Date: February 20, 2024 Dept: 29
Demurrer and Motion to Strike filed by Defendant Contemporary
Services Corporation.
Tentative
The Demurrer is OVERRULED.
The Motion to Strike is DENIED in part and GRANTED
in part with leave to amend.
Background
This case arises out of an incident on
October 7, 2023, at or near the conclusion of a Sting concert at the Hollywood
Bowl. alleges he was subject to a severe
assault and battery by security guards, and Plaintiff David Van Dam, Matthew’s
father, alleges that he was subjected to severe mental distress from witnessing
the unprovoked attack on his son.
Plaintiffs Matthew and David Van Dam (collectively
“Plaintiffs”) filed the Complaint in this action on October 27, 2023 against
Defendants Contemporary Services Corporation, dba CSC (“CSC”); Los Angeles
Philharmonic Association dba Hollywood Bowl (“LAPA”); and Does 1 through 10. In the Complaint, Plaintiff Matthew Van Dam asserts
a First Cause of Action for assault and battery, a Second Cause of Action for false
imprisonment, and a Third Cause of Action for intentional infliction of
emotional distress. Plaintiff David Van
Dam asserts a Fourth Cause of Action for intentional infliction of emotional
distress.
LAPA filed its Answer to the Complaint on
December 7, 2023. On the same day, LAPA
filed a Cross-Complaint for indemnity against CSC and Roes 1 through 50. On December 8, LAPA filed another (non-identical)
Answer.
On January 17, 2024, CSC filed this demurrer
and motion to strike.
No opposition has been filed.
Legal
Standard
A
demurrer tests the legal sufficiency of a complaint (or other pleading) and
raises only issues of law. (Code Civ. Proc., § 430.10, subd. (e); see Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The Court may
consider only the allegations of the pleading (including exhibits) and
judicially noticeable matters. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116
Cal.App.4th at p. 994; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)
The Court must accept as true all
properly pleaded facts appearing in the complaint. (Donabedian, supra, 116
Cal.App.4th at p. 994; Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th
500, 505.)
A motion
to strike challenges “any irrelevant, false, or improper matter inserted in any
pleading” or “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.” (Code Civ. Proc., § 436.) In ruling on a motion to
strike, the court must assume the truth of the properly pleaded facts in the
complaint or other pleading. (Turman v. Turning
Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)
Meet and Confer Requirement
Before any party files a demurrer or a motion
to strike, the parties must meet and confer.
(Code
Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)
That requirement is satisfied here.
(Evans Decls., ¶¶ 4-11 & Exhs. A-B.)
Discussion
Demurrer
CSC demurs to the Fourth Cause of Action (only),
in which Plaintiff David Van Dam asserts a cause of action for Intentional Infliction
of Emotional Distress (“IIED”).
According to CSC, the IIED cause of action fails to state sufficient facts
and is to uncertain, vague and ambiguous.
“The elements of a cause of action for IIED are
as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so
extreme as to exceed all bounds of decency in a civilized community) with the
intent to cause, or with reckless disregard to the probability of causing,
emotional distress; and (2) as a result, plaintiff suffered extreme or severe
emotional distress. [Citation] Additionally, “ ‘[i]t must be conduct directed
at the plaintiff, or occur in the presence of the plaintiff of whom the
defendant is aware.’ [Citation.] ‘The requirement that the defendant's conduct
be directed primarily at the plaintiff is a factor which distinguishes
intentional infliction of emotional distress from the negligent infliction of
such injury.’ ” ” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273
[307 Cal.Rptr.3d 778, 793], as modified on denial of reh'g (May 15, 2023),
review denied (Aug. 9, 2023) citing Potter v. Firestone Tire & Rubber
Co. (1993) 6 Cal.4th 965, 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795.)
Plaintiff David Van Dam alleges in the
verified Complaint that he was unfairly targeted by security officers and a
manger for standing in the aisle along with other concert goers, and that when
his son Matthew attempted to intervene, security officers ordered both me to
leave, and then “slamm[ed]” Matthew “face first into the ground” and handcuffed
him. (Complaint, ¶¶ 17-24.) Plaintiff David Van Dam “witnessed Defendants
intentionally causing severe injury and emotional distress to his son.” (Complaint, ¶ 60.)
The Court finds
that Plaintiff David Van Dam has pleaded sufficient facts in the
Complaint. Taking the facts alleged as
true, a trier of fact could find that Defendants engaged in outrageous conduct
that was intended to, and did, cause severe emotional distress to Plaintiff
David Van Dam.
Accordingly, CSC’s
demurrer is OVERRULED.
Motion to Strike
Defendant moves
to strike five phrases from Plaintiffs’ complaint as irrelevant, false, or
inappropriate, as well as Plaintiff’s request for punitive damages. Defendant
requests the following be stricken from the Complaint:
(1) “Defendants acted with intent to cause harmful and
offensive conduct.” [Complaint ¶ 37, 6:18.]
(2) “Matthew reasonably apprehended an immediate harmful or
offensive contact by Defendants.” [Complaint ¶ 38; 6:19-20.]
(3) “Defendants acted with malice, oppression, and reckless
disregard of Matthew’s rights in detaining him in the holding cell.” [Complaint
¶ 48; 7:15-16.]
(4) “In committing the acts described herein, Defendants
engaged in extreme and outrageous conduct extending beyond the bounds of human
decency, causing Matthew to suffer severe mental distress.” [Complaint ¶ 53;
7:27-28-8:1.]
(5) “Defendants intended to, and did cause Matthew to suffer
severe physical injury and emotional distress, and acted with reckless
disregard of the probability that Plaintiff would suffer suffer [sic] such
injuries as a result.” [Complaint ¶ 54; 8:2-4.]
(6) “For punitive damages in an amount to be determined at
trial;” [Complaint Prayer ¶ B; 9:6.]
(Motion, 1-2:26-27,
1-12.)
As to the first
five allegations, the motion is DENIED. The
Court must accept the allegations as true, and such allegations are properly
included in a complaint asserting causes of action for assault and battery,
false imprisonment, and intentional infliction of emotional distress.
As to the prayer
for punitive damages against CSC, the motion is GRANTED.
“‘In
order to state a prima facie claim for punitive damages, a complaint must set forth
the elements as stated in the general punitive damage statute, Civil Code
section 3294.” (Today IV’s Inc. v. Los Angeles County MTA (2022) 83
Cal.App.5th 1137, 1193.) Civil Code section 3294 provides that on non-contract
causes of action, plaintiffs may recover punitive damages when they prove “by
clear and convincing evidence that the defendant has been guilty of oppression,
fraud, or malice” (Civ. Code, § 3294, subd. (a).)
“Oppression”
is defined as “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 defined as “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).) “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 of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) The term “despicable,” which is used
in the definition of “oppression” and “malice” refers to 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.) In general, punitive damages
are appropriate if the defendant's acts are reprehensible, fraudulent or in
blatant violation of law or policy. (American Airlines, Inc. v. Sheppard,
Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.)
To
show that a defendant acted with “willful and conscious disregard of the rights
or safety of others,” it is not enough to establish negligence, gross
negligence or even recklessness. (Dawes v. Super. Ct. (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 knowingly disregarded the substantial certainty of injury
to others.” (Id. at p. 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
Hosp., Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 725.)
In a complaint, the plaintiff must allege specific facts showing
that the defendant has been guilty of malice,
oppression or fraud. (Id. at p. 721.) The basis for punitive damages
must be pleaded with particularity; conclusory allegations devoid of any
factual assertions are insufficient. (Smith v. Super. Ct. (1992) 10
Cal.App.4th 1033, 1042.; see also Anschutz Entertainment Group, Inc.
v. Snepp (2009) 171 Cal.App.4th 598, 643.)
Here, Plaintiffs are
relying on a vicarious liability theory to seek punitive damages (that is, Plaintiffs
seek punitive damages against an employer for the conduct of employees). Accordingly, their claim for punitive damages
is governed by Civil Code section 3294, subdivision (b). That subdivision provides: “An employer shall
not be liable for damages pursuant to subdivision (a), based upon acts of an
employee of the employer, 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 the 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.”
In the
Complaint, however, Plaintiffs do not allege sufficient facts regarding advance
knowledge, conscious disregard, authorization, or ratification by an officer,
director, or managing agent of CSC. Thus,
the Complaint, in its current form, does not properly allege a claim to recover
punitive damages against CSC, and the Court GRANTS the motion to strike the prayer
for punitive damages against CSC.
As this is the
first pleading, and the defect is one of the form of the allegations, the Court
GRANTS Plaintiffs leave to amend.
Conclusion
The Court OVERRULES
CSC’s demurrer.
The Court DENIES
CSC’s motion to strike allegations in paragraphs 37, 38, 48, 53, and 54 of the
Complaint.
The Court GRANTS
CSC’s motion to strike the prayer for punitive damages against CSC (Complaint,
at page 9, line 6). The Court GRANTS
Plaintiffs leave to amend their allegations to attempt to address the pleading
deficiency within 21 days of notice.
Moving Party is
to give notice.