Judge: Steven A. Ellis, Case: 23STCV30260, Date: 2025-02-27 Tentative Ruling

Case Number: 23STCV30260    Hearing Date: February 27, 2025    Dept: 29

Lewis v. The Petersen Automotive Museum Foundation
23STCV30260
Defendants’ Demurrer to First Amended Complaint

Tentative

The demurrer is overruled.

Background

Two related cases arise out of (among other things) an incident on December 11, 2021, in which Defendant Thomas P. Otis is alleged to have shot Marquise D. Lewis.  At the time of the shooting, Mr. Lewis was (allegedly) working as a security guard at the Petersen Automotive Museum at the corner of Wilshire Boulevard and Fairfax Avenue, and Mr. Otis was (allegedly) leaving a function at the museum hosted by his employer, Bistagne Body Shop.

In this case (Case No. 23STCV30260), Marquise D. Lewis and Jo’Nez M. Caine (collectively “Plaintiffs”) filed a complaint on December 11, 2023, against The Petersen Automotive Museum Foundation (“Petersen”); Thomas P. Otis (“Otis”); Bistagne Brothers Body Shop, Inc.; Bistagne Brothers Properties, LLC; Bistagne Brothers, LLC; Bistagne Holdings LLC; Robert E. Bistagne; Charles A. Bistagne; John E. Bistagne; and Does 1 through 100.

Petersen filed an answer to the complaint on February 7, 2024.

On July 3, 2024, Plaintiffs filed a request to dismiss Defendants Bistagne Holdings LLC and John E. Bistagne.

On October 31, 2024, Plaintiffs filed a First Amended Complaint (“FAC”) against the same defendants (except John E. Bistagne).  In the FAC, Plaintiffs assert nine causes of action: (1) unlawful discrimination; (2) unlawful termination; (3) failure to prevent harassment and discrimination; (4) civil battery; (5) negligence; (6) premises liability; (7) breach of contract; (8) negligent hiring and retention; and (9) loss of consortium.

On December 3, 2024, Petersen filed an answer to the FAC.

Also on December 3, 2024, Bistagne Brothers Body Shop, Inc.; Bistagne Brothers Properties, LLC; Bistagne Brothers, LLC; Robert E. Bistagne and Charles A. Bistagne (collectively, the “Bistagne Defendants”) filed this demurrer to the FAC.

Plaintiffs filed an opposition on February 13, and the Bistagne Defendants filed a reply on February 20.

Legal Standard

Code of Civil Procedure section 430.10 provides:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

A general demurrer under Code of Civil Procedure section 430.10, subdivision (e), tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see also 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial [2024], ¶ 7:40.)

“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  We also consider matters which may be judicially noticed.”  (Centinela Freeman Emergency Medical Associates v. Health Net of California (2016) 1 Cal.5th 994, 1010; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; accord Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924; Marina Pacific Hotel and Suites v. Fireman’s Fund Insurance Company (2022) 81 Cal.App.5th 96, 104.)  All reasonable inferences must be drawn in favor of the pleading.  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Marina Pacific Hotel and Suites, supra, 81 Cal.App.5th at p. 104.)  Even “improbable” facts alleged in the pleading must be accepted as true.  (Marina Pacific Hotel and Suites, supra, 81 Cal.App.5th at pp. 104-105.)

Courts must “liberally construe the pleading” and “give the complaint a reasonable interpretation, reading it as a whole and its parts in context.”  (Id. at p. 105.)

A complaint must contain a “statement of facts constituting the cause of action, in ordinary and concise language.”  (Code Civ. Proc., § 425.10, subd. (a)(1); see also C.A. v. William S. Hart High School Dist. (2012) 53 Cal.4th 861, 872 [“the complaint need only allege facts sufficient to state a cause of action”].)  Ordinarily, a complaint “is sufficient if it alleges ultimate rather than evidentiary facts.”  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  Ultimate facts are those upon which “the right to recover depends” and are “essential” to the cause of action.  (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 643 fn. 2; see also 1 Weil & Brown, supra, ¶ 6:124.)

A plaintiff is required to plead only “the essential facts of [its] case” that are sufficient “to acquaint a defendant with the nature, source and extent of [the] cause of action.”  (Doe, supra, 42 Cal.4th at p. 550.)  Mere boilerplate or pleading of legal conclusions is not sufficient.  (Id. at p. 551 fn. 5.)  But a plaintiff need not allege “each evidentiary fact that might eventually form part of plaintiff’s proof” at trial.  (C.A., supra, 53 Cal.4th at p. 872.)

A demurrer can be sustained only when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Leave to amend should be granted when “there is a reasonable possibility that the defect can be cured by amendment.”  (Centinela Freeman, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318; Shaeffer v. Califia Farms (2020) 44 Cal.App.5th 1125, 1145.)

Meet and Confer Requirement

Before filing a demurrer, the parties must meet and confer.  (Code Civ. Proc., § 430.41, subd. (a).)  That requirement is satisfied here.  (Attal Decl., ¶ 2.)

Discussion

In the FAC, Plaintiff Lewis asserts causes of action against the Bistagne Defendants for civil battery, negligence, premises liability, breach of contract; and negligent hiring and retention.  Plaintiff Cain asserts a cause of action against the Bistagne Defendants for loss of consortium.

The Bistagne Defendants demur to the causes of action for civil battery, negligence, premises liability, and breach of contract on the ground that each fails to state facts sufficient to constitute a cause of action against them and that each is uncertain.

The Court considers each cause of action in turn.

Fourth Cause of Action (Civil Battery)

Plaintiffs allege that Defendant Otis committed a civil battery against Plaintiff Lewis, that Plaintiff Lewis was injured as a result, and that Defendant Otis committed the battery while acting within the course and scope of his employment with the Bistagne Defendants.  (FAC, ¶¶ 11, 124, 132.)  Plaintiffs also allege that the Bistagne Defendants provided for alcohol to be served at a work-related function in the Petersen Automotive Museum, that Defendant Otis attended the function and became intoxicated and belligerent after consuming alcohol, and that in this intoxicated and belligerent state had a confrontation with Plaintiff Lewis that escalated and ultimately resulted in Defendant Otis shooting Plaintiff Lewis.  (Id., ¶¶ 132, 137-141.)

The law regarding respondeat superior liability is well established in California. A “principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as part of the transaction of such business.” (Civ. Code, § 2338.) “[A]n employer is vicariously liable for the torts of its employees committed within the scope of employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) “The respondeat superior doctrine makes an employer liable, irrespective of fault, for an employee’s tortious conduct in the scope of employment.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1154.)  The employer may, under certain circumstances, be vicariously liable for not only negligent acts by an employee but also intentional (and even criminal) ones.  (Lisa M., supra, 12 Cal.4th at pp. 296-297.)

For more than 50 years, courts in California have based respondeat superior liability not on a theory of control by the principal or employer but rather on the allocation of risk: a business is responsible for the costs associated with the operations of the business, including the tortious conduct of its agent or employee that is “typical of or broadly incidental to the enterprise [the employer] has undertaken,” the “more or less inevitable toll of a lawful enterprise.”  (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960.) The “risks inherent in or created by the enterprise” are properly born by the principal or employer, particularly when the agent or employee who committed the tort “was on company time and was engaged in the very conduct contemplated by the employer.” (Ibid.; see also, e.g., Carr v. Wm C. Crowell Co. (1946) 28 Cal.2d 652, 655-656 [referring to the “risks of the enterprise”].)

In determining the scope of agency or employment, the California Supreme Court has adopted and repeatedly relied on a standard set forth by the Court of Appeal in Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 618-619:

“One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, “foreseeability” in this context must be distinguished from “foreseeability” as a test for negligence.  In the latter sense, “foreseeable” means a level of probability which would lead a prudent person to take effective precautions whereas “foreseeability” as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. … In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.”

(See, e.g., Lisa M., supra, 12 Cal.4th at p. 299 [quoting Rodgers]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [same]; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 [same]; see also CACI No. 3720 (stating that conduct is within the scope of employment if it is “reasonably related to the kinds of tasks that the [employee] was employed to perform” or “reasonably foreseeable in light of the employer’s business or the [employee’s] responsibilities.”)

“To hold an employer vicariously liable the employee must be engaged in the duties which he was employed to perform or those acts which incidentally or indirectly contribute to the employer’s service.  Conversely, the employer is not liable when the employee is pursuing his own ends.”  (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481 [citations and quotation marks omitted].)

In the context of respondeat superior liability, courts construe “scope of employment” or “scope of agency” broadly.  (Farmers Ins. Group, supra, 11 Cal.4th at p. 1004; Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 385; Jeewarat v. Warner Bros. Entertainment (2009) 177 Cal.App.4th 427, 434.)  “Where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.”  (Farmers Ins. Group, supra, 11 Cal.4th at p. 1004; accord Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 970; Jorge, supra, 3 Cal.App.5th at p. 386; Jeewarat, supra, 177 Cal.App.4th at pp. 434-435.)

Courts have held that injuries that occur as a result of an employee’s intoxication after consuming alcohol at a work-related function may fall within the course and scope of employment.  (See McCarty v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 677, 681-682; Purton v. Marriott Int’l, Inc. (2013) 218 Cal.App.4th 499, 509.)

“Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible.”  (Lisa M., supra, 12 Cal.4th at p. 299.)

Plaintiffs have alleged both the ultimate facts and substantial evidentiary facts in support of their attempt to hold the Bistagne Defendants vicariously liable for the conduct of Defendant Otis.  Taking the factual allegations in the FAC as true, Plaintiffs have stated facts sufficient to constitute a cause of action for civil battery against the Bistagne Defendants.

The Court understands that the Bistagne Defendants may well contest Plaintiff’s allegations.  They may contend, for example, that the tort occurred as a result of a personal dispute between Plaintiff Lewis and Defendant Otis; that Defendant Otis was not an employee of the Bistagne Defendants; or that Defendant Otis was not acting within the course and scope of the employment relationship when he committed the tort.  None of that, however, can properly adjudicated on demurrer.

The Bistagne Defendants argue that the pleading of course and scope in the FAC is impermissible boilerplate, citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 134 fn. 12.  But this case, unlike Moore, involves a simple tort: Defendant Otis either was or was not acting within the scope of his employment at the time that Otis (allegedly) shot Plaintiff Lewis, and that can be resolved only on the facts, not on the pleadings.  In Moore, in contrast, plaintiff alleged that cells from his body had been used for potentially lucrative medical research without his permission, and the boilerplate allegations that every defendant acted within the course and scope of an employment or agency relationship with every other defendant was deemed to be insufficient.

The Bistagne Defendants also argue that the FAC does not specify which of them was the employer of Otis.  The short answer is that Plaintiffs allege in the FAC that Otis was an employee of each of the Bistagne Defendants.  (FAC, ¶¶ 11, 124.)  That Court accepts that allegation as true.

In the alternative, the Bistagne Defendants demur on the ground of uncertainty.  Demurrers for uncertainty are “disfavored” and will be sustained “only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (A.J. Fistes Corp. v. GDL Best Contractors (2019) 38 Cal.App.5th 677, 695.)  A complaint need not be “a model of clarity” and must only contain sufficient allegations to put the defendants on notice of the claims against them.  (Ibid.)  As the Court of Appeal has observed, “where a complaint is in some respects uncertain, … ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; see also 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2024), ¶¶7:85-7:86.)

Here, the FAC is not incomprehensible; the Bistagne Defendants can reasonably respond.  That is particularly true given that they presumably have access to the critical facts, including whether they ever employed Otis, which of them (if any) was the employer, when the employment relationship (if any) began and ended, and what was the nature and scope of the employment relationship (if any). 

The demurrer of the Bistagne Defendants to the Fourth Cause of Action in the FAC (for civil battery) is overruled.

Fifth Cause of Action (Negligence)

For similar reasons, Plaintiffs’ cause of action against the Bistagne Defendants for negligence states facts sufficient to constitute a cause of action under a vicarious liability theory. 

In addition, and independently, in this cause of action, Plaintiffs also allege a direct cause of action for negligence against the Bistagne Defendants.

The basic elements of a cause of action for negligence (and for premises liability, the Sixth Cause of Action) are: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  

According to the FAC, the Bistagne Defendants hosted a work-related function at which Defendant Otis was an invited guest; that they knew that Defendant Otis had a history of becoming intoxicated and belligerent after consuming alcohol; that they served him alcohol; and that he in fact became intoxicated and belligerent at the function.  (FAC, ¶¶ 124, 132, 135.)  These facts, if proven true, would give rise to a duty of the host of the business-related function to exercise ordinary care to protect others from an unreasonable risk of harm.  (Civ. Code, § 1714; Brown, supra, 11 Cal.5th at p. 214.).)  Plaintiffs allege that the Bistagne Defendants failed to do so.  (FAC, ¶ 186.)  On this alternative theory as well, Plaintiffs have alleged sufficient facts to constitute a negligence cause of action against the Bistagne Defendants.

This cause of action is also not uncertain.

The demurrer of the Bistagne Defendants to the Fifth Cause of Action in the FAC (for negligence) is overruled.

Sixth Cause of Action (Premises Liability)

As noted above, the basic elements of a cause of action for premises liability are the same as for negligence. But that does not mean that the causes of action are identical or duplicative. In a negligence cause of action, the relevant duty is (in general) the duty to exercise ordinary care for the safety of others.  In a premises liability cause of action, however, the duty is more specific: it is the duty, for those who own, possess, or control property, to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1159-1163, 1170-1171; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, Plaintiffs sufficiently allege the element of control of the premises.  (FAC, ¶ 134.)  That is an adequate pleading of the ultimate fact. 

Plaintiffs have alleged sufficient facts to constitute a premises liability cause of action against the Bistagne Defendants.

This cause of action is also not uncertain.

The demurrer of the Bistagne Defendants to the Sixth Cause of Action in the FAC (for premises liability) is overruled.

Seventh Cause of Action (Breach of Contract)

In the FAC, Plaintiffs allege that the Bistagne Defendants entered into one or more contracts with Defendant Petersen and Doe defendants; that one of the terms of those contracts required the Bistagne Defendants to provide adequate security to protect all individuals who were present that evening at the Petersen Automotive Museum; that Plaintiff Lewis was one of the third party beneficiaries of that contract; and that the Bistagne Defendants breached their contract, causing injury to Plaintiff Lewis.  (FAC, ¶¶ 133, 198-201.)  On demurrer, the Court must accept these allegations as true.

Plaintiffs have alleged sufficient facts to constitute a breach of contract cause of action against the Bistagne Defendants.

This cause of action is also not uncertain.

The demurrer of the Bistagne Defendants to the Seventh Cause of Action in the FAC (for breach of contract) is overruled.

Conclusion

The Court OVERRULES the Demurrer to the FAC filed by the Bistagne Defendants.

The Court ORDERS Plaintiffs to give notice.