Judge Timothy Patrick Dillon, Case 21STCV46592 2022-07-26 Tentative Ruling

Judge: Timothy Patrick Dillon, Case: 21STCV46592, Date: 2022-07-26 Tentative Ruling

Counsel for Plaintiff/opposing party: John C. Carpenter, Matthew Singer, and Gina M. Shandler (Carpenter & Zuckerman)

The demurrer is sustained in part with leave to amend (i.e., as to 2^nd-6^th causes of action) and overruled in part (i.e., as to 1^st cause of action). The motion to strike is moot.

This case arises from an alleged physical altercation between Plaintiff and grocery store security guard(s). Plaintiff Miyoshi Grant (“Plaintiff”) alleges the following against Defendants Kroger Company (“Kroger”), Ralphs Grocery Company (“Ralphs”), American Guard (“American Guard”), and Doe Defendants (collectively, “Defendants”): On December 22, 2021, Plaintiff entered into a Ralphs grocery store. Plaintiff was confronted by an employee, who acted with hostility towards Plaintiff. On her attempt to leave the store, Plaintiff was then confronted by a security guard, who then shoved Plaintiff to the floor, “repeatedly and violently punched her face,” sprayed pepper spray into her eyes and face, “dragged her across the Ralphs store,” and “threw her onto the cement pavement outside. (First Amended Complaint (“FAC”) ¶¶20-23.) Thereafter, the police arrived and arrested Plaintiff. Plaintiff alleges that Defendants conspired to have Plaintiff falsely arrested. (FAC ¶26.)

On December 21, 2021, Plaintiff filed suit against Defendants alleging causes of action for:

On March 9, 2022, Defendant Ralphs filed a Demurrer and Motion to Strike, which was later determined to be moot in light of the FAC. On March 30, 2022, Plaintiff filed her FAC reasserting the same causes of action against the same Defendants. On May 13, 2022, Defendant Ralphs filed its Motion to Strike. On May 17, 2022, Defendant Ralphs filed the instant Demurrer. On July 13, 2022, Plaintiff filed her Opposition. On July 18, 2022, Defendant Ralphs filed its Reply.[1]

A demurrer may be asserted 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 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 (“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 CCP §411.35 or (i) by §411.36. (Cal. Civ. Proc. Code §430.10) (emphasis added). Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Cal. Civ. Proc. Code §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Cal. Civ. Proc. Code §430.31(a).) As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. (Cal. Civ. Proc. Code §430.31(a)(1).) The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. (Cal. Civ. Proc. Code §430.31(a)(3).)[3]

“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.)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 669.) In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a “willful disregard” of the plaintiff's rights. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)

Defendant Ralphs argues that it cannot be vicariously liable for the conduct of the security guards because (i) Defendant Ralphs did not authorize or ratify the guard’s conduct and (ii) the FAC does not allege that the security guards were working within their scope of employment (i.e., preventing theft) (Demurrer pp. 13-14.)

In opposition, Plaintiff avers that she has sufficiently pled vicarious liability because “the wrongful and illegal acts perpetrated on Plaintiff were an ‘outgrowth’ of their employment as security guards” and thus “[t]he Doe Security Guards’ misconduct foreseeably arose out of their role to surveil and secure the premises.” (Opp. pp. 7-8, citing Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 494, quoting Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298-299 [“[T]he incident leading to injury must be an ‘outgrowth’ of the employment [citation]; the risk of tortious injury must be ‘“inherent in the working environment” ’ [citation] or ‘ “typical of or broadly incidental to the enterprise [the employer] has undertaken.” ’ [citation.] [¶] Looking at the matter with a slightly different focus, California courts have also asked whether the tort was, in a general way, foreseeable from the employee's duties. Respondeat superior liability should apply only to the types of injuries that ‘ “as a practical matter are sure to occur in the conduct of the employer's enterprise.” ’ [Citation.] The employment, in other words, must be such as predictably to create the risk employees will commit ... torts of the type for which liability is sought.”].)

Here, while Plaintiff has not alleged the reason why the interaction between the Doe Security Guards took place, Plaintiff has alleged enough facts to infer that the Doe Security guards were acting within their scope of employment to surveil and secure the grocery store. After all, Plaintiff’s first hostile interaction occurred a few minutes after she exited the restroom and was inspecting a cake at the back of the store when an employee “observ[ed] her closely with a hostile facial expression,” conduct perhaps implying that Plaintiff was under surveillance for shoplifting. (FAC ¶13.) Moreover, based on said suspicious behavior, the Security Guards, who were “armed with mace, a bullet proof vest, and police belt carrying a standard baton and/or rifle,” confronted Plaintiff and then used said tactical equipment to allegedly threaten and harm Plaintiff. (FAC ¶16.) Accordingly, while the relationship between an employee's work and wrongful conduct is sometimes “so attenuated that a jury could not reasonably conclude that the act was within the scope of employment,” here, it is foreseeable that armed security personnel would use those arms to protect its premises from customers like Plaintiff. (Ayon, supra, 27 Cal.App.5th at pp. 494-495.).

Therefore, for purposes of a demurrer wherein the court draws all inferences in favor of the plaintiff, the court OVERRULES the demurrer as to the 1^st cause of action for Assault and Battery.

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.)

Defendant Ralphs argues that this cause of action is “redundant and superfluous” to the 3^rd cause of action for negligent hiring, retention, and supervision cause of action. (Demurrer p. 15, relying on So v. Shin (2013) 212 Cal.App.4th 652.)

Here, the negligence cause of action alleges that Defendant Ralphs breached its duty when “they invited Plaintiff onto the RALPHS premises, which they knew or should have known was unsafe for Plaintiff. DEFENDANTS further breached their duty when they failed to take proper measures to ensure the premises would be safe for customers like Plaintiff, including without limitation, installing proper surveillance in RALPHS stores, ensuring that an adequate number of managers are on duty for each shift, and properly implementing background checks and inquiries into new employees and using other safeguards in its hiring process. DEFENDANTS further breached their duty when they failed to properly train and implement policies and procedures to protect customers like Plaintiff from harm and violence and/or failure to follow said procedures when interacting with Plaintiff.” (FAC ¶56.) The 3^rd cause of action focuses on Defendant Ralphs’s hiring of “unfit and/or incompetent” guards and its failure to “properly implement policies to ensure shopper and employee safety.” (FAC ¶¶64, 65.) While the negligence cause of action alleges more facts, two exhibit significant overlap. Such a situation was addressed by the court in So, supra. In So, a plaintiff underwent surgery, but due to inadequate anesthesia, she was awake during the procedure. When the plaintiff confronted the anesthesiologist about this happening, the anesthesiologist shoved a container filled with plaintiff’s blood and tissue at her. Plaintiff sued the anesthesiologist and her medical group, as well as the hospital, asserting that the anesthesiologist's conduct constituted negligence, assault and battery, and intentional infliction of emotional distress, and that the hospital and medical group were liable to her directly and through the doctrine of respondeat superior. There the court found that the plaintiff cannot pursue a claim of direct negligence against the hospital based on the following reasoning:

[P]laintiff premises her direct negligence claim on the hospital's alleged failure to properly screen Dr. Shin before engaging her and to properly supervise her after engaging her. Since hiring and supervising medical personnel, as well as safeguarding incapacitated patients, are clearly within the scope of services for which the hospital is licensed, its alleged failure to do so necessarily states a claim for professional negligence.

Similarly, here, the allegations in support of the negligence cause of action are encompassed under the negligent hiring cause of action because Plaintiff is presupposing Defendant Ralph’s negligence on the presumption that Ralphs is liable for negligent hiring of the security guards.

Therefore, to the extent that the 2^nd cause of action encompasses the 3^rd cause of action, the court SUSTAINS the Demurrer with leave to amend.[5]

The elements of a claim for negligent hiring, supervision, and/or retention are that (1) the employer defendant hired the employee; (2) the employee was or became unfit or incompetent to perform the work for which the employee was hired; (3) the employer knew or should have known the employee was or became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) that the employee’s unfitness or incompetence harmed the plaintiff; and (5) that the employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff’s harm. (CACI No. 426) (emphasis added).

The theory is one of direct liability for negligence and not vicarious liability because the employer “knew or should have known…the employee created a particularized risk or hazard and that particular harm materializes.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139-40.) The liability for negligent supervision is based on the theory that the principal knew or should have known the employee or agent “was a person who could not be trust to act properly without being supervised.” (Noble v. Sears Roebuck & Co. (1973) 33 Cal.App.3d 654, 664.)

Defendant Ralphs argues that the FAC fails to allege that the security guard had “previously remarked or shown any form of negative attitude from which [Defendant Ralphs] should have recognized at his incompetency or unfitness to carry out his duties.” (Demurrer p. 16.)

In opposition, Plaintiff argues that it has pled enough facts, citing to various allegations in the FAC.

Here, however, Plaintiff has not alleged facts that Defendant Ralphs knew or should have known the security guard was or became unfit or incompetent and that this unfitness or incompetence created a particular risk to others. Indeed, as Defendant Ralphs notes, Plaintiff acknowledges that she had seen this security guard from prior visits (FAC ¶15), but does not allege any previous admonitions by the security towards Plaintiff to suggest a propensity for violence.

Therefore, as Plaintiff has failed to plead an element of the cause of action, the court SUSTAINS the Demurrer with leave to amend.[6]

4. Fourth Cause of Action (Civil Code section 51.7) and Fifth Cause of Action (Civil Code section 51 and 52) for Civil Rights Violations Pursuant to the Ralph Act and the Unruh Act

“The elements of a claim brought under¿section 51.7 are: (1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff's race [or other enumerated characteristic]; (3) the plaintiff was harmed; and (4) the defendant's conduct was a substantial factor in causing the plaintiff's harm.” (Knapps v. City of Oakland (N.D. Cal. 2009) 647 F.Supp.2d 1129, 1167 citing Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-81) (emphasis added).

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51(b).( “No business establishment of any kind whatsoever shall discriminate against . . . any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Id., § 51.5(a).)

Defendant Ralphs argues that Plaintiff has made conclusory allegations that she was attacked because of her race, which cannot be used to infer discriminatory motive. (Demurrer p. 18.)

In Opposition, Plaintiff argues that the protected characteristic need not constitute the only motivating factor, just that it be a “substantial motivating fact.” (Opp. p. 14.)

Here, a review of the FAC reveals that while Plaintiff is an African-American woman, there are no allegations that she was attacked because of her race.

Therefore, the court SUSTAINS the demurrer to the 4^th and 5^th causes of action with leave to amend.

5. Sixth Cause of Action for Violation of the Bane Act (Civil Code section 52.1)

A claim for violation of the Bane Act can be brought by an individual against a private person, where that person interferes with the Plaintiff’s legal rights by threat, intimidation, or coercion. (Civ. Code § 52.1(a), (b).) To allege a cause of action under Civil Code section 52.1, the plaintiff must allege that “the defendant interfered with or attempted to interfere with the plaintiff’s legal right by threatening or committing violent acts.” (Doe v. State (2017) 8 Cal.App.5th 832, 842.) “[A] plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion.” (O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 502.) “Coercion inherent in the alleged constitutional violation, i.e., an overdetention in jail, is insufficient to meet the statutory requirement of ‘threat, intimidation, or coercion.’” (Doe, supra, 8 Cal.App.5th at 842 (quoting Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959).) “The statute requires a showing of threatening conduct independent from the alleged interference or violation of a civil right.” (Id. at 842-43.) “‘[A] wrongful arrest and detention, without more, cannot constitute ‘force, intimidation, or coercion’ for purposes of section 52.1.’” (Id. at 843 (quoting Shoyoye, supra, 203 Cal.App.4th at 960).) (See Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 978-79 (finding that an arrest without probable cause accompanied by a beating and pepper spraying of an unresisting plaintiff is sufficient to show coercion separate and apart from the coercion inherent in an unlawful arrest).)

Defendant Ralphs argues that the FAC fails to allege facts to support vicarious liability, therefore, any alleged violation of the Bane Act fails. (Demurrer p. 19.)

In Opposition, Plaintiff argues that she was exercising her protected right to be free from threats of violence; she was exercising her constitutional free speech rights when she sought to speak to a store manager; and that Defendant Ralphs interfered with her rights by false imprisoning her. (Opp. p. 16.)

Here, while Plaintiff’s Opposition makes the aforementioned points, the FAC itself does not, as evidenced by Plaintiff’s citation to the allegations not within the sixth cause of action.

Therefore, as a demurrer only concerns the face of the pleading (i.e., not the opposition), the court SUSTAINS the demurrer with leave to amend.

Based on the foregoing, the demurrer is sustained in part and overruled in part. As such, the motion to strike is moot.

[1] The Reply is brief and states that “Defendant's failure to reply to the opposition as to each and every cause of action demurred to or addressed by Plaintiff in her Opposition is not meant to be a waiver or conceding the issues. Rather, Defendant has no additional argument to present that have not already been presented at length in the demurrer papers.” (Reply p. 2.) Therefore, while the court has read the Reply, it will not be cited in the court’s analysis because it does not raise new arguments.

[2] Defendant Ralphs demurs to all six causes of action in the FAC pursuant to Code of Civil Procedure section 430.10 subdivisions (e) and (f).

[3] Defense Counsel met and conferred with Plaintiff’s counsel via phone and by email. To date, Defense Counsel has not received a response to the issues in the meet and confer letter dated May 5, 2022. (Demurrer, Hyde Decl., ¶6.) Based on the letter thoroughly delineating Defense Counsel’s issue with the FAC, Defense Counsel has demonstrated sufficient efforts to meet and confer. (Demurrer, Hyde Decl., Ex. B, pp. 53-55 of PDF.)

[4] Plaintiff’s Opposition does not respond to this case.

[5] Plaintiff seeks leave to amend as to this cause of action to add a False Imprisonment cause of action and additional factual allegations. (Opp. p. 11.)

[6] Plaintiff seeks leave to amend to include additional factual allegations about Ralph’s prior knowledge of unfitness of its employees, agents, and independent contractors. (Opp. p. 12.)