Judge: Virginia Keeny, Case: 24STCV34001, Date: 2025-06-02 Tentative Ruling
Case Number: 24STCV34001 Hearing Date: June 2, 2025 Dept: 45
RAYMOND TISCARENO vs WALLGREENS
CO., et al.
defendant wallgreen’s demurrer with motion to strike
Date
of Hearing: June
2, 2025 Trial
Date: N/A
Department: 45 Case No.: 24STCV34001
Moving
Party: Defendant Walgreen Co.
Responding
Party: Plaintiff Raymond Tiscareno
Meet
and Confer: Yes. (Nikolenko Decl.)
BACKGROUND
On December 24, 2024, Plaintiff Raymond
Tiscareno filed a complaint against Defendant Wallgreens Co., Allied Universal
Security Services Universal Protection Service, LLC, Zurich American Insurance
Company, Watermark Security Group, Inc. and Indian Harbor Insurance Company for
(1) Personal Injury (Cal. Civ. Code §§ 3281 et seq.); (2) Assault and Battery
(Cal. Penal Code §§ 240 et seq.) (3) Negligent Hiring and Supervision (Cal.
Civ. Code §§ 1714(a) et seq.) (4) False Imprisonment (Cal. Civ. Code §§ 1708.5
et seq.) and (5) Intentional Infliction of Emotional Distress. Plaintiff
alleges after visiting a Walgreens, he was approached by one of the Defendant’s
security guards and accused of theft. Plaintiff alleges the security guard immediately
yanked the scooter out of his hands, pepper-sprayed him, and forcibly tackled
him to the ground, and proceeded to beat him with a baton.
On April 8, 2025, Plaintiff dismissed
Indian Harbor Insurance Company.
[Tentative] Ruling
Defendant Walgreen Co.’s Demurrer
is OVERRULED. Defendant’s Motion to
Strike is DENIED.
discussion
Defendant Walgreen Co. demurs to the
complaint on the grounds each cause of action asserted against Walgreen Co.
fails to assert facts sufficient to state a cause of action.
Uncertainty
Defendant Walgreen Co. demurs to the
complaint on the grounds each cause of action relies upon Plaintiff’s
inconsistent allegations that the security guard employed by Co-Defendant Allied
Universal is somehow also employed in the same capacity by Walgreen Co. and
three other Co-Defendants. Specifically, Defendant Walgreen Co. argues the
complaint is comprised of repeated blanket statements that Walgreen Co.’s
officers, directors and/or managing agents authorized/ratified the security
guard’s conduct yet fails to provide actual facts that Walgreen Co. is vicariously
responsible for the conduct of a security guard employed by a separate entity.
In opposition, Plaintiff argues the
complaint clearly alleges Plaintiff was assaulted by a Walgreens-affiliated
security guard just outside the premises, that the guard was acting within the
course and scope of employment, and that Walgreens is liable under theories of
respondeat superior, ratification, and negligent hiring and supervision.
The court finds the allegations are not
so uncertain to sustain a demurrer. As alleged, whether the security guard is
employed by one or all defendants can be determined during discovery. A
demurrer based on uncertainty only applies where the complaint is so bad that a
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.)
First Cause of Action – “Negligence”
Defendant Walgreen Co. demurs to the first
cause of action on the grounds it is unclear what cause of action Plaintiff
attempts to assert here. Defendant argues there is no single theory of
liability stated. Rather, the complaint unclearly states that Plaintiff
suffered injury from the “negligence and intentional actions” of Defendants and
thus should be awarded damages.
In opposition, Plaintiff argues Defendant
mischaracterizes the nature of Plaintiff’s allegations as the first cause of
action is clearly grounded in common law negligence and respondeat superior
liability, both well-established bases for recovery under California law.
The court finds Plaintiff has
sufficiently alleged a claim for negligence. To plead a cause of action for
negligence, one must allege (1) a legal duty owed to plaintiffs to use due
care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County
of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292,
318.) An employer may be vicariously liable for an employee’s tort, even if it
was malicious, willful, or criminal if the employee’s acts was an “outgrowth”
of his employment, “inherent in the working environment,” “typical of or
broadly incidental to” the employer’s business, or, in a general way,
foreseeable from his duties. (Yamaguchi v. Harnsmut (2003) 106
Cal. App. 4th 472, 482.) Plaintiff here alleges that the conduct was
taken in the course and scope of the guard’s employment by Walgreens, and/or Walgreen’s
ratification, authorization or advance knowledge of the security guard’s conduct.
As for whether the security guard was acting within the scope of his
employment, a jury could find the security guard who assaulted Plaintiff was
acting within the scope of their employment even if it was outside the store. Ordinarily,
the determination of 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. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,
299.)
Accordingly, the demurrer to the first
cause of action is OVERRULED.
Second Cause of Action – Assault &
Battery
Defendant Walgreen Co. demurs to the
second cause of action on the grounds Plaintiff has asserted no factual basis
for finding Walgreen Co. vicariously liable for this intentional conduct, even
if the court interprets the security guard to be an employee of Walgreen Co.
for purposes of this demurrer.
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.) The 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. (Carlsen, supra, 227 Cal.App.4th at
p. 890.)
Defendant argues the type of harm
allegedly suffered here is not inherent, typical of, incidental to, or
otherwise a generally foreseeable consequence of the employer’s business.
Moreover, Plaintiff has provided no facts in support of his allegations that
Walgreen Co. acted with malice, fraud, and oppression in conscious disregard of
Plaintiff’s rights.
In opposition, Plaintiff argues Plaintiff
clearly pleads that he was pepper-sprayed, tackled, and beaten with a baton by
a uniformed security guard acting with apparent or actual authority on behalf
of Walgreens. Plaintiff alleges that the security guard was employed to deter
theft and protect store property—a role that inherently carries a risk of
physical confrontation. It is entirely foreseeable that a guard assigned such
duties might use excessive force, even if such force is unauthorized.
As noted above, the court finds that
under liberal pleading standards, these allegations are sufficient to allege
that the security guard who assaulted Plaintiff was acting within the scope of
their employment with Walgreen such that vicarious liability is imputed onto Walgreen.
The court notes Walgreen disputes that the security guard was even employed by
Walgreen. However, as alleged, the security guard was employed by at least
Allied United and Walgreens and the parties can continue discovery to determine
otherwise.
Accordingly, the demurrer to the second
cause of action is OVERRULED.
Third Cause of Action – Negligent Hiring
and Supervision
Defendant Walgreen Co. demurs to the
third cause of action on the grounds the complaint fails to assert any facts
establishing that Plaintiff’s harm was reasonably foreseeable.
A cause of action for negligent hiring,
supervision, or retention of an employee requires the following elements: (1)
the employer hired employee; (2) the employee was/became unfit or incompetent
to perform the work for which he was hired; (3) the employer knew or should
have known the employee was/became unfit or incompetent and that this unfitness
or incompetence created a particular risk to others; (4) the employee’s
unfitness or incompetence harmed plaintiff; and (5) the employer’s negligence
in hiring/supervising/ retaining the employee was a substantial factor in
causing plaintiff’s harm.¿ (Federico v. Superior Court (1997) 59
Cal.App.4th 1207, 1213-1214.)¿ To establish a cause of action for negligent
hiring, retention, or supervision, a plaintiff must show that the employer knew
or should have known that hiring or retaining the employee created a particular
risk or hazard and that particular harm occurs.¿ (See Z.V. v. County of
Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50
Cal.App.4th at 1054.)¿ Negligent hiring, retention, or supervision is a form of
direct negligence.¿ (Ibid.)¿
The complaint alleges “Defendant’s
failure to properly vet and supervise its security guard, who engaged in
unwarranted use of force against PLAINTIFF, constitutes negligent hiring and
supervision.” (Compl. ¶54.) The court agrees the allegations are insufficient.
Plaintiff argues the allegations are
sufficient because Walgreen Co. and its Co-Defendants hired or retained the
security guard, placed him in a role requiring close contact with customers,
and failed to properly screen, train, or supervise him—despite the foreseeable
risk of using excessive force in a retail security setting. The complaint also
alleges that failed to use ordinary care in the screening and hiring of the
guard and failed to supervise the guard after he was hired. These factual allegations are sufficient to
plead a cause of action for negligent hiring and supervision against this
defendant.
Accordingly, the demurrer to the third
cause of action is OVERRULED.
Fourth Cause of Action – False
Imprisonment
Defendant Walgreen Co. demurs to the fourth cause of
action on the grounds the complaint fails to assert facts sufficient to state a
cause of action for false imprisonment, even directly as to the security guard,
because there are no facts showing that Plaintiff was ever confined or detained
for an appreciable length of time.
The elements for false imprisonment are
(1) nonconsensual, intentional confinement of a person, (2) without lawful
privilege, (3) for an appreciable period of time, however brief. (Easton v.
Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496; see CACI
1400.)
Defendant argues even assuming a direct
theory of liability could be established as to the unnamed security guard,
Plaintiff does not assert facts in support of finding Walgreen Co. vicariously
liable for such intentional conduct – even if the court interprets the security
guard to be an employee of Walgreen Co. for purposes of this demurrer.
In opposition, Plaintiff argues they did
not need be physically restrained to be falsely imprisoned as California courts
have long held that false imprisonment may be established by physical
restraint, threats of force, or other conduct that would cause a reasonable
person to believe they are not free to leave.
The court finds the allegations
sufficient for the purposes of a demurrer. At the demurrer stage, a court only
need to determine whether the facts alleged are sufficient to state a claim. A
jury could find a security guard in an attempt to stop a theft leading to
assault or false imprisonment is incidental to the enterprise. Moreover, as
noted by Plaintiff, the alleged detention need only be for an appreciable
length of time, however short.
Accordingly, the demurrer to the fourth
cause of action is OVERRULED
Fifth Cause of Action – Intentional
Infliction of Emotional Distress
Defendant Walgreen Co. demurs to the
fifth cause of action on the grounds Plaintiff provides no facts in support of
finding vicarious liability as to Walgreen Co. for the security guard’s conduct.
The court has found Plaintiff’s
allegations for scope of employment sufficient, as well as the allegations for
each cause of action. Accordingly,
plaintiff has sufficiently alleged a claim for IIED as to Walgreens based on
those allegations and the allegations that Walgreens ratified and authorized
the guard’s conduct.
Sixth Cause of Action – Destruction of
Property
Defendant Walgreen Co. demurs to the
sixth cause of action on the grounds no facts exist in support of finding
vicarious liability as to Walgreen Co. for the security guard’s conduct.
For reasons stated above, the sixth
cause of action is OVERRULED.
Motion to Strike
Defendants moves to strike portions to
the complaint on the grounds Plaintiff has pled no facts to support oppression,
fraud or malice on the part of Walgreen Co., and thus is not entitled to seek
punitive damages.
The court finds the allegations
sufficient to show malice, oppression or fraud based on the allegations that
Walgreens’ managing agents, directors or officers authorized or ratified this
conduct.
The motion to strike is DENIED.