Judge Teresa A. Beaudet, Case Number: 24STCV04265, Date: 2025-01-08 Tentative Ruling

Plaintiff Ahmed Mokhtar (“Plaintiff”) filed this action on February 21, 2024 against a number of Defendants.

Plaintiff filed the operative First Amended Complaint (“FAC”) on August 19, 2024 against a number of Defendants, including Goldenvoice, LLC (“Goldenvoice”) and Staff Pro Inc. (“Staff Pro”).[1] The FAC alleges causes of action for (1) assault and battery, (2) intentional infliction of emotional distress, (3) negligence, and (4) negligent hiring, training, supervision, and retention.

In the FAC, Plaintiff alleges, inter alia, that “[o]n or about April 17, 2022, [he] was a patron at the Coachella Valley Music and Arts Festival in Indio, California, which is owned and operated by Defendant Goldenvoice, LLC…” (FAC, ¶ 17.) Plaintiff alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20 acted in a threatening, offensive, and assaultive manner, with the intent of creating fear and apprehension in Plaintiff of a harmful and offensive physical contact, and Plaintiff felt so threatened, when, without limitation, Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, unlawfully and intentionally approached Plaintiff in an aggressive manner and began threatening, abusing, harassing, intimidating, and/or threatening Plaintiff with physical violence causing Plaintiff to suffer damage.” (FAC, ¶ 19.)

Plaintiff further alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, did physically assault, harm, batter, and injure Plaintiff, with the intent of committing such assault, harm, battery and injury, when, without limitation, Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, unlawfully and intentionally struck Plaintiff causing Plaintiff to fall to the ground; physically and violently attacked and battered Plaintiff; and repeatedly struck Plaintiff while Plaintiff was defenseless and in fear for his life causing Plaintiff to sustain damage.” (FAC, ¶ 20.)

Goldenvoice now demurs to each of the causes of action of the FAC and moves to strike portions of the FAC. Plaintiff opposes both.

In addition, Staff Pro demurs to each of the causes of action of the FAC. Plaintiff opposes.

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¿.)¿

Goldenvoice asserts that the entire FAC is uncertain. First, Goldenvoice argues that “[a]s Staff Pro, Inc. is a corporation it cannot and does not act for itself,” and that accordingly, “Goldenvoice’s Demurrer should be granted.” (Demurrer at pp. 12:1-2; 12:4-5.) The Court notes that Goldenvoice does not cite to any legal authority to support this argument. As Goldenvoice acknowledges in its reply, “[c]ontentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned.” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318.) In addition, the Court does not see why the demurrer should be sustained as to Goldenvoice because Staff Pro is a corporation.

Next, Goldenvoice cites to paragraph 18 of the FAC, which alleges that “[a]t all relevant times Defendants IPS Security Inc.; Prudent Security Solutions, Inc.; CISS Management Group; Staff Pro Inc.; Staff Pro, LLC; and Does 3 through 20 were employees acting in the course and scope of their employment with Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20.” (FAC, ¶ 18.) Goldenvoice appears to argue that this allegation “makes the entire FAC uncertain, ambiguous and unintelligible because companies cannot and do not employ themselves.” (Demurrer at p. 12:12-14.) However, Goldenvoice does not explain why this allegation purportedly makes any of the causes of action of the FAC ambiguous and/or unintelligible.

Goldenvoice also asserts that “the allegations fail to specify which Defendant or Defendants undertook what alleged act or actions that resulted in Plaintiff being injured.” (Demurrer at p. 12:19-20.) But each of the causes of action of the FAC do specify which Defendants took the acts that allegedly injured Plaintiff. (See, e.g., FAC, ¶¶ 19, 20, 36, 55, 73.)

Goldenvoice also argues that Plaintiff “has asserted alleged conduct undertaken or failed to be taken again by the collective ‘Defendants.’ Plaintiff makes no effort to allege any facts to specify which Defendant, individual or corporate, actually engaged in the alleged wrongful conduct.” (Demurrer at p. 12:22-25.) However, the FAC alleges that “[t]he use of the terms ‘Defendant,’ ‘Defendants,’ or reference to a specifically named defendant in this FAC shall mean all defendants, including DOES 3 through 20.” (FAC, ¶ 13.) Goldenvoice does not appear to address this allegation in its demurrer.

The Court does not find that Goldenvoice has demonstrated that any of the causes of action of the FAC are uncertain. Thus, the Court overrules Goldenvoice’s demurrer made on the grounds of uncertainty.

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) In addition, “[t]he elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching.” (Ibid.)

In the demurrer, Goldenvoice argues that “Goldenvoice is a corporation and cannot attack or injure anyone. Rather, the corporation acts through its officers, directors, managing agent and/or employees. Nowhere in the FAC does Plaintiff identify any conduct on the part of Goldenvoice’s officers, directors or managing agents.” (Demurrer at p. 14:25-28.) But Goldenvoice does not cite to any legal authority to support this argument. Goldenvoice does not provide any legal authority stating that a cause of action for assault and battery may not be alleged against an entity defendant, or that such cause of action must identify a specific employee of Goldenvoice. As discussed, “[c]ontentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned.” (Anastos v. Lee, supra, 118 Cal.App.4th at p. 1318.)

Next, Goldenvoice cites to Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 430, where the Court of Appeal noted that “[t]he general rule -- to which there are numerous exceptions -- is that the hirer of an independent contractor is not liable to third parties for the contractor’s negligence.” Goldenvoice argues that “[t]o the extent Plaintiff has alleged that Defendants, IPS Security Inc.; Prudent Security Solutions, Inc.; CISS Management Group; Staff Pro Inc. and Staff Pro, LLC…were employees acting in the course and scope of their employment with Goldenvoice it is the general rule in California that an employer of an independent contractor is not liable for the latter’s torts.” (Demurrer at p. 15:7-11.) But the FAC does not appear to allege that any of the defendant(s) are independent contractors of Goldenvoice. The Court notes that “[o]n a demurrer a court’s function¿is limited to testing the legal sufficiency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [internal quotations and citation omitted].)

Goldenvoice also argues that “Plaintiff alleges that all named and unnamed Defendants assaulted and battered him. Thus, it is impossible for Goldenvoice to determine from the allegations who actually assaulted or battered Plaintiff and which Corporate Defendant that person worked for.” (Demurrer at p. 15:17-19.) But Goldenvoice does not cite any legal authority stating that Plaintiff may not allege a cause of action for assault and battery against multiple defendants.

The Court does not find that Goldenvoice has shown that Plaintiff’s first cause of action for assault and battery fails to state facts sufficient to constitute a cause of action or is uncertain. Thus, the Court overrules Goldenvoice’s demurrer to the first cause of action.

“The elements of 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. The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [internal quotations and citation omitted].)

In the demurrer, Goldenvoice first argues that “Plaintiff fails to identify who injured him. As such, it is impossible for Goldenvoice to determine if it, or some other named defendant, employed this person.” (Demurrer at p. 16:22-23.) Goldenvoice similarly argues that “Plaintiff fails to allege any facts regarding the conduct of any Goldenvoice employee as causing Plaintiff extreme emotional distress.” (Demurrer at pp. 16:28-17:1.) However, Goldenvoice does not cite to any legal authority demonstrating that the FAC must identify the specific employee of Goldenvoice that allegedly injured Plaintiff.

Next, Goldenvoice argues that “Plaintiff must allege facts that an officer, director, managing agent or employee intentionally caused him extreme emotional distress. Nowhere in the FAC does Plaintiff identify the conduct of any Goldenvoice officer, director or managing agent.” (Demurrer at p. 16:24-27.) Again, Goldenvoice does not cite to any legal authority to support this argument. Goldenvoice does not provide legal authority showing that Plaintiff must identify a specific Goldenvoice officer, director, or managing agent to support Plaintiff’s cause of action for intentional infliction of emotional distress. Goldenvoice also asserts that “Plaintiff simply lumps all of the named and unnamed Defendants together and alleges they are all responsible for causing him extreme emotional distress.” (Demurrer at p. 17:9-10.) But Goldenvoice does not cite any legal authority stating that Plaintiff may not allege a cause of action for intentional infliction of emotional distress against multiple defendants.

Lastly, Goldenvoice argues that “Plaintiff has failed to identify any facts evidencing any conduct on the part of Goldenvoice or its employees that is extreme or outrageous or has gone beyond all reasonable bounds of decency.” (Demurrer at p. 17:19-21.) The Court finds that Plaintiff has adequately alleged “extreme and outrageous conduct” for purposes of his cause of action for intentional infliction of emotional distress. Plaintiff alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, unlawfully and intentionally threatened, abused, harassed, and intimidated Plaintiff; threatened Plaintiff with physical violence; repeatedly struck Plaintiff while Plaintiff was defenseless and in fear for his life, all causing Plaintiff to sustain severe injury and damages.” (FAC, ¶ 36.)

Based on the foregoing, the Court overrules Goldenvoice’s demurrer to the second cause of action.

E. Third Cause of Action for Negligence and Fourth Cause of Action for Negligent Hiring, Training, Supervision, and Retention

In addition, “[a]n employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit…The rule of direct employer liability under the Restatement Second of Agency section 213 is:…A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless…(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others…” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565.)

Goldenvoice argues that Plaintiff “fails to allege sufficient fact [sic] to support his negligence based causes of action.” (Demurrer at p. 18:1-2.)

First, Goldenvoice argues that “Plaintiff’s FAC fails to allege any facts, let alone sufficient facts, identifying what duty of care Goldenvoice owed to him…” (Demurrer at p. 18:24-25.) However, in the negligence cause of action, Plaintiff alleges that “[a]t all relevant times, Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, as citizens and members of society, owed a duty to act as reasonable, prudent persons and/or entities, to not assault, batter, and/or harm Plaintiff and to abide by state and local laws.” (FAC, ¶ 52.) In addition, in the cause of action for negligent hiring, training, supervision, and retention, Plaintiff alleges that “[a]t all relevant times, Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, as citizens and members of society, owed a duty to act as reasonable, prudent persons and/or entities, in the selection, hiring, training, supervision, and retention of its employees and agents.” (FAC, ¶ 71.) Goldenvoice does not appear to address the foregoing allegations in its demurrer or show that they are purportedly insufficient.

Next, Goldenvoice asserts that “Plaintiff has not alleged any facts, let alone sufficient facts, that Goldenvoice employed the person who injured him. In fact, Plaintiff made no effort to even identify this person in the FAC.” (Demurrer at p. 19:21-23.) Goldenvoice does not cite to any legal authority to support the proposition that Plaintiff must identify the specific

Goldenvoice employee that allegedly injured Plaintiff in order to adequately plead causes of action for negligence or negligent hiring, training, supervision, and retention.

In addition, Goldenvoice argues that “Plaintiff also fails to allege any facts, other than conclusions, that Goldenvoice as the alleged employer of the person who allegedly injured him, had reason to know, or failed to use reasonable care to determine that this person was unfit for the employment whatever that may be.” (Demurrer at p. 19:25-27.) Goldenvoice cites to Roman Catholic Bishop v. Superior Court, supra, 42 Cal.App.4th at pages 1564-1565, which, as set forth above, provides that “[a]n employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit…The rule of direct employer liability under the Restatement Second of Agency section 213 is:…A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless…(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others…”

Based on the foregoing, the Court sustains Goldenvoice’s demurrer to the fourth cause of action, with leave to amend. The Court overrules Goldenvoice’s demurrer to the third cause of action.

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or all or any part of a 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.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Here, Goldenvoice moves to strike Plaintiff’s punitive damages allegations. As an initial matter, as set forth above, the Court sustains Goldenvoice’s demurrer to the fourth cause of action of the FAC, with leave to amend. Thus, the Court denies Goldenvoice’s motion to strike paragraphs 76-79 of the FAC as moot.

Goldenvoice first argues that “Plaintiff has failed to allege sufficient, specific facts against Goldenvoice to support a claim for punitive damages.” (Mot. at p. 10:14-15.) Pursuant to Civil Code section 3294, subdivision (a), “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

As used in Civil Code section 3294, “malice” means “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).) “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” means “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).)

The Court finds that Plaintiff has sufficiently alleged “malice” and “oppression” for purposes of his claim for punitive damages. As discussed, Plaintiff alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, unlawfully and intentionally approached Plaintiff in an aggressive manner and began threatening, abusing, harassing, intimidating, and/or threatening Plaintiff with physical violence causing Plaintiff to suffer damage.” (FAC, ¶ 19.) Plaintiff further alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, unlawfully and intentionally struck Plaintiff causing Plaintiff to fall to the ground; physically and violently attacked and battered Plaintiff; and repeatedly struck Plaintiff while Plaintiff was defenseless and in fear for his life causing Plaintiff to sustain damage.” (FAC, ¶ 20.)

Goldenvoice also argues in the motion that “Plaintiff’s claim for punitive damages is insufficient as to Goldenvoice as a corporate defendant.” (Mot. at p. 15:10-11.) Civil Code section 3294, subdivision (b) provides as follows:

“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.”

Goldenvoice asserts that “the FAC fails to allege how, when or in what capacity any officer, director, or managing agent of Goldenvoice acted to injure him [sic] to support a claim for punitive damages.” (Mot. at p. 16:19-20.) Goldenvoice argues that “[w]ithout identifying the specific individual, the specific conduct and/or the specific corporate officers, directors, or managing agents who performed said conduct or approved and/or ratified said conduct, Plaintiff has failed to allege any facts, let alone sufficient specific facts, to support a claim for punitive damages against Goldenvoice as an employer.” (Mot. at pp. 16:28-17:4.)

Plaintiff does not appear to respond to these points in the opposition. Plaintiff does not appear to allege facts demonstrating how Goldenvoice “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…” (Civ. Code, § 3294, subd. (b).) Plaintiff also does not appear to allege that any “act of oppression, fraud, or malice [was] on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

Based on the foregoing, the Court grants Goldenvoice’s motion to strike paragraphs 28-31, 44-47, and 63-66 of the FAC, with leave to amend. The Court also grants Goldenvoice’s motion to strike Plaintiff’s prayer for “[e]xemplary and/or punitive damages against Does 3 through 20, as established at the time of trial,” with leave to amend. (FAC, p. 16:15-16.)

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, supra, 39 Cal.3d at p. 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., supra, 53 Cal.4th at p. 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., supra, 2 Cal.4th at pp. 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10(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., supra, 185 Cal.App.3d at p. 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., supra, 14 Cal.App.4th at p. 616.)¿

First, Staff Pro argues that “[t]he first amended complaint is uncertain because it lacks facts as to which individual from which entity actually struck him.” (Demurrer at p. 3:19-20.) However, as set forth above, Plaintiff alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, unlawfully and intentionally struck Plaintiff causing Plaintiff to fall to the ground; physically and violently attacked and battered Plaintiff; and repeatedly struck Plaintiff while Plaintiff was defenseless and in fear for his life causing Plaintiff to sustain damage.” (FAC, ¶ 20.)Staff Pro does not cite to legal authority stating that Plaintiff must identify a specific individual that allegedly “struck Plaintiff.”

Staff Pro asserts that “[t]he first amended complaint does not include a name of the individual that struck him, a physical description, or a description of the clothing the individual was wearing.” (Demurrer at p. 3:21-23.) But Staff Pro does not cite to any legal authority demonstrating that Plaintiff’s causes of action require such facts to be alleged. In addition, as noted by Plaintiff, “[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. A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [internal quotations and citation omitted].)

The Court does not find that Staff Pro has demonstrated that the causes of action of the FAC are uncertain. Thus, the Court overrules Staff Pro’s demurrer made on the grounds of uncertainty.

As set forth above, “[t]he elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.” (Carlsen v. Koivumaki, supra, 227 Cal.App.4th at p. 890.) In addition, “[t]he elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching.” (Ibid.)

Staff Pro argues that “[t]he conclusory allegations that all defendants assaulted Plaintiffs are too uncertain and unintelligible to state a cause of action for assault and battery, as it is ambiguous which defendant actually committed the alleged assault and battery.” (Demurrer at pp. 4:27-5:1.) But Staff Pro does not cite any legal authority stating that Plaintiff may not allege a cause of action for assault and battery against multiple defendants.

Staff Pro also asserts that “the allegation that there was no provocation by Plaintiff…supports that any such assault was done outside of the scope of employment or independent contractor relationship.” (Demurrer at p. 5:2-4.) Staff Pro points to paragraph 22 of the FAC, which alleges that “[a]t all relevant times, the conduct of Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20, inclusive, alleged herein, was unjustified and engaged in without any provocation by Plaintiff.” The Court does not see how this allegation purportedly shows that the alleged assault “was done outside of the scope of employment or independent contractor relationship.” (Demurrer at p. 5:4.) In addition, the FAC does not appear to contain any allegations concerning an independent contractor relationship. As set forth above,

“[o]n a demurrer a court’s function¿is limited to testing the legal sufficiency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.”

The Court does not find that Staff Pro has shown that Plaintiff’s first cause of action for assault and battery fails to state facts sufficient to constitute a cause of action or is uncertain. Thus, the Court overrules Staff Pro’s demurrer to the first cause of action.[2]

As discussed, “[t]he elements of 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. The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” (Christensen v. Superior Court, supra, 54 Cal.3d at p. 903 [internal quotations and citation omitted].)

Staff Pro first argues that “Plaintiff fails to allege who actually allegedly assaulted him. Rather, Plaintiff lumps all defendants together and alleges entity defendants are liable…These conclusory allegations are not enough to support that Staff Pro engaged in conduct that would cause Plaintiff emotional distress.” (Demurrer at p. 5:25-28.) Again, Staff Pro does not cite to any legal authority demonstrating that the FAC must identify the specific employee of Staff Pro that allegedly injured Plaintiff.

Next, Staff Pro asserts that “Plaintiff alleges no factual allegations to support the second element of severe emotional distress.” (Demurrer at p. 6:2-3.) Staff Pro cites to Hughes v. Pair (2009) 46 Cal.4th 1035, superseded by statute on other grounds as stated in Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663. Staff Pro notes that in Hughes, the California Supreme Court found that “plaintiff’s assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation as the result of defendant’s comments to her on the telephone and at the museum on June 27, 2005, do not comprise emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Id. at p. 1051 [internal quotations omitted].)

Staff Pro notes that here, Plaintiff alleges that he “suffered severe emotional and physical distress as result of the conduct of Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20,” and that “[t]he conduct of Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20 was done with the intention of causing Plaintiff to suffer emotional and physical distress, including, without limitation, humiliation, and mental anguish.” (FAC, ¶¶ 41, 43.) Staff Pro asserts that such allegations do “not meet the severe emotional distress element.” (Demurrer at p. 6:11.)

In the opposition, Plaintiff asserts that Hughes is distinguishable, because in that case, “the Court found…verbal comments insufficient to result in substantial emotional distress,” but “in the instant case the Plaintiff’s emotional distress results from his being physically battered.” (Opp’n at p. 12:17-20, emphasis omitted.) But Staff Pro’s argument here concerns “the degree of emotional distress, not the cause.” (Reply at p. 4:20-21.) Staff pro is arguing that Plaintiff has not adequately alleged sufficient facts to support the element of “severe or extreme emotional distress.” The Court agrees that Plaintiff’s allegations of emotional distress are conclusory.

Based on the foregoing, the Court sustains Staff Pro’s demurrer to the second cause of action, with leave to amend.

Staff Pro cites to Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1072, where the Court of Appeal noted that “[a]s a general rule, in the absence of a special relationship or statutory obligation, one is not liable for the tortious or criminal acts of others.” Staff Pro argues that “[d]ue to the uncertainty of the allegations that lump all defendants together, Staff Pro is not liable for acts of other parties.” (Demurrer at p. 6:27-28.)

In the opposition, Plaintiff notes that he alleges that “[a]t all relevant times, Defendants had a special relationship with Plaintiff which created a duty to protect the Plaintiff from the violence and misconduct that he suffered,” and that “[a]t all relevant times, Defendants had voluntarily undertaken a duty to protect Plaintiff from the violence and misconduct that he suffered.” (FAC, ¶¶ 53, 54.) Staff Pro does not appear to address these allegations in its demurrer. Staff Pro also asserts that Gray is distinguishable because that case, “[a]ppellant’s injuries resulted from a gunshot wound inflicted by another guest at the hotel.” (Gray v. Kircher, supra, 193 Cal.App.3d at p. 1071.) Plaintiff asserts that here, by contrast, his injuries “were inflicted not by unknown third persons, but rather by Staff Pro…” (Opp’n at p. 14:6-7.) Staff Pro does not appear to address this point in its reply.

Staff Pro also asserts that “[h]ere, like in Gray, there are no facts to show that the alleged conduct of assault and battery was reasonably foreseeable.” (Demurrer at p. 7:18-19.) But in Gray, the Court of Appeal noted that “[a]lthough they are not insurers of safety, it is undisputed that owners or possessors of land, and particularly innkeepers, have a duty of care to protect invitees or tenants from the reasonably foreseeable criminal or tortious conduct of third persons.” (Gray v. Kircher, supra, 193 Cal.App.3d at p. 1073.) Here, Plaintiff does not appear to allege that Staff Pro is an owner of land or an innkeeper with a duty of care to protect invitees or tenants. The Court agrees with Plaintiff that Gray is distinguishable from the facts alleged in this action.

The Court does not find that Staff Pro has shown that Plaintiff’s negligence cause of action fails to state facts sufficient to constitute a cause of action or is uncertain. Thus, the Court overrules Staff Pro’s demurrer to the third cause of action.

F. Fourth Cause of Action for Negligent Hiring, Training, Supervision, and Retention

As set forth above, “[a]n employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit…The rule of direct employer liability under the Restatement Second of Agency section 213 is:…A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless…(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others…” (Roman Catholic Bishop v. Superior Court, supra, 42 Cal.App.4th at pp. 1564-1565.) Staff Pro cites to Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214, where the Court of Appeal noted that “[a]s the court in Roman Catholic Bishop v. Superior Court, supra, 42 Cal. App. 4th 1556, explained, an employer’s duty, as defined by California authority and the Restatement, is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Internal emphasis omitted.)

Staff Pro asserts that here, “[t]here are no facts that the individual who allegedly assaulted Plaintiff was employed by Staff Pro. Nor are there facts that allege that the individual was unfit to perform security services or that Staff Pro knew the individual was unfit. There are no facts that Staff Pro had actual knowledge or should have had knowledge of any propensity of the individual to assault or batter a patron at Coachella.” (Demurrer at pp. 9:27-10:3.) Plaintiff does not appear to respond to this point in the opposition. Indeed, Plaintiff does not appear to allege facts demonstrating how Staff Pro was allegedly negligent in hiring or retaining an incompetent or unfit employee. Rather, as set forth above, Plaintiff alleges that “Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20 negligently breached the duties owed to Plaintiff when, without limitation, Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20 and unlawfully selected, hired, trained, supervised, and retained Defendants Goldenvoice, LLC, IPS Security, Inc., Prudent Security Solutions, Inc., CISS Management Group, Staff Pro Inc., Staff Pro, LLC, and Does 3 through 20.” (FAC, ¶ 72.) As discussed, the Court finds that this allegation is conclusory.

Based on the foregoing, the Court sustains Staff Pro’s demurrer to the fourth cause of action, with leave to amend.

Based on the foregoing, the Court sustains Goldenvoice’s demurrer to the fourth cause of action of the FAC, with leave to amend. The Court overrules Goldenvoice’s demurrer to the first, second, and third causes of action of the FAC.

The Court denies Goldenvoice’s motion to strike paragraphs 76-79 of the FAC as moot.

The Court grants Goldenvoice’s motion to strike paragraphs 28-31, 44-47, and 63-66 of the FAC, with leave to amend. The Court also grants Goldenvoice’s motion to strike Plaintiff’s prayer for “[e]xemplary and/or punitive damages against Does 3 through 20, as established at the time of trial,” with leave to amend. (FAC, p. 16:15-16.)

In addition, based on the foregoing, the Court sustains Staff Pro’s demurrer to the second and fourth cause of action of the FAC, with leave to amend. The Court overrules Staff Pro’s demurrer to the first and third causes of action of the FAC.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Goldenvoice and Staff Pro are ordered to file and serve their answers within 30 days of the date of this Order.¿

[1]On April 22, 2024, Plaintiff filed an Amendment to Complaint naming Staff Pro in place of Doe 1.

[2]Staff Pro appears to raise new arguments for the first time in its reply as to the assault and battery cause of action. The Court notes that “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.) Thus, the Court declines to consider the points raised by Staff Pro for the first time in its reply.

Superior Court of California

County of Los Angeles

Department 50