Judge: William A. Crowfoot, Case: 22STCV00613, Date: 2022-10-04 Tentative Ruling

Case Number: 22STCV00613    Hearing Date: October 4, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On January 6, 2022, plaintiff Lucine Khourchidian (“Plaintiff”) filed this action against defendants B&V Enterprises, Inc. (erroneously sued as “B&V Enterprises, Inc. dba Super King Markets”) and Got Guard Inc. (“Defendant”) Plaintiff alleges that on January 7, 2020, she was “forcibly taken to the ground by a security guard” during an altercation between the guard and a shoplifter. Plaintiff asserts causes of action for “negligence - premises liability” and battery.

          On August 4, 2022, Plaintiff and Defendant stipulated to set aside the default which was entered against Defendant on June 6, 2022.  On September 2, 2022, Defendant filed this demurrer as to Plaintiff’s Complaint.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Dustin Rabi, counsel for Defendants, states that he placed a call to Plaintiff’s counsel on August 26, 2022, to discuss the deficiencies of the Complaint.  (Demurrer, Rabi Decl., ¶ 3.)  The meet and confer requirement is satisfied.

          Premises Liability/Negligence

          Defendant argues Plaintiff fails to plead sufficient facts to establish a negligence theory because the harm was caused by a third-party criminal act.  Specifically, Defendant claims Plaintiff cannot plead any allegation showing that Defendant owed a duty or that the third-party criminal act was foreseeable.  The Court disagrees. 

          Plaintiff alleges that Defendant “negligently maintained, controlled, managed and operated [its] property so as to fail to protect Plaintiff from injury.”  (Compl., ¶ 11.)  This includes “negligently fail[ing[ to provide adequate security measures, and fail[ing] to avoid injury to persons who were legitimately located on the property.  (Ibid.)  Defendant also allegedly “knew or in the exercise of reasonable care should have known that a lack of these adequate security measures constituted an unreasonable risk of harm to the large number of invitees on the premises.”  (Ibid.) Therefore, Plaintiff has pled that the altercation was a foreseeable result of Defendant’s inadequate security measures. 

Defendant also relies on a nonbinding trial court ruling and argues that it is a security provider and therefore is not the owner, lessee, manager, or operator of the premises with the requisite control of the premise.  However, Plaintiff alleges that Defendant “in some manner owned, maintained, and/or controlled the property at issue herein, and owed a duty of care to Plaintiff . . . who was an invitee on Defendant’s property.”  (Compl., ¶ 10.)  For pleading purposes, this is sufficient.  The issue of actual control can be raised in a summary judgment motion where evidence outside the pleadings can be considered. 

Battery

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 plaintiffs position would have been offended by the touching.”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) 

Defendant argues Plaintiff cannot allege that its security guard committed a battery because Plaintiff admits the contact was the result of “a mistake or accident.”  (Compl., ¶ 18.)  However, Plaintiff refers to the doctrine of transferred intent, citing to Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318, in which the Court of Appeals stated, “If defendant unlawfully aims at one person and hits another he is guilty of assault and battery on the party he hit, the injury being the direct, natural and probable consequence of the wrongful act.

In its reply, Defendant also argues that Plaintiff still fails to allege how Defendant is vicariously liable because there are no allegations that the security guard’s actions were authorized or within the course and scope of his job duties.  Notwithstanding the impropriety of raising new arguments on reply, Defendant’s argument is unpersuasive.  As Defendant cites in its reply brief, the question of whether an employer should be held vicariously liable for an employee’s act is not dependent on whether the act was authorized by the employer or within the employee’s job responsibilities, but revolves around “whether the risk of such an act is typical of or broadly incidental to the employer’s enterprise.”  (See Reply, 7:17-26; citing to Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 481-82.)  Here, Plaintiff alleges that she was “forcibly taken to the ground” during an altercation between a security guard and a shop lifter.  (Compl., ¶ 9.)  Such an act is “broadly incidental” to the general enterprise of security services.  Further, Plaintiff alleges that the takedown occurred “with the connivance and supervision or lack of it.”  These allegations are sufficient at the pleadings stage. 

IV.     CONCLUSION

Defendant’s demurrer is OVERRULED.  Defendant is ordered to file an answer within 20 days.  

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.