Judge: William A. Crowfoot, Case: 22STCV12054, Date: 2022-09-29 Tentative Ruling

Case Number: 22STCV12054    Hearing Date: September 29, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On April 8, 2022, plaintiffs Veronica Zuniga, Manuel Zuniga, and Brian Zuniga (collectively, “Plaintiffs”) filed this action against defendant City of San Fernando (“Defendant”) for assault, battery, and negligence.  On August 19, 2022, Defendant filed this demurrer and motion to strike.  Defendant demurs to Plaintiffs’ causes of action for assault and battery.  Defendant also moves to strike Plaintiffs’ punitive damages allegations. 

          On August 29, 2022, Plaintiffs filed an opposition brief to Defendant’s demurrer, but not the motion to strike.  In their opposition brief, Plaintiffs conceded that they will amend the complaint to remove the cause of action for assault.  Plaintiffs did not oppose the motion to strike.  Accordingly, Defendant’s motion to strike is GRANTED and Defendant’s demurrer to the cause of action for assault is SUSTAINED.  The remainder of this ruling addresses Defendant’s demurrer to the battery cause of action. 

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).) 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

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 or motion to strike, the demurring or moving 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); 435.5, subd. (a).)  

          Defense counsel, Allison R. Hilgers, declares that on July 26, 2022, they met and conferred with Plaintiffs’ counsel, Gevorg Vardanyan, regarding the issues raised in the demurrer and motion to strike.  (Demurrer, Hilgers Decl., ¶ 3.)  The meet and confer requirement is satisfied.

          Battery

Defendant demurs to Plaintiffs’ cause of action for battery.  “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 the defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching."  (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) 

Plaintiffs allege that on April 10, 2021, Defendant’s police officers indiscriminately and recklessly shot multiple rounds of gun fire at the general direction of a parked vehicle directly across the Plaintiffs’ residence located at 406 Harps Street, San Fernando.  (Compl., ¶ 13.)  Plaintiffs allege that according to a May 21, 2021, press release, the shooting was directed at Guillermo Amezcua, who was inside the vehicle that was parked directly in front of Plaintiffs’ residence.  (Compl., ¶ 14.)  Plaintiffs allege that multiple bullets penetrated through the front wall and windows of Plaintiffs’ residence.  (Compl., ¶ 16.)  Brian Zuniga heard the bullets striking the wall and windows of the house and screamed to get down, fearing for his and his loved ones’ lives.  (Compl., ¶17.)  Veronica Zuniga felt the heat from one of the bullets that just missed striking her in the face.  (Compl., ¶ 18.) 

Defendant argues that Plaintiffs fail to state a claim for battery because there is no allegation that they were physically touched by a bullet or anything else.  Also, there are no factual allegations made as to Manuel Zuniga. (Demurrer, 5:1-9.)  In opposition, Plaintiffs argue that a battery does not necessarily require a direct contact.  Plaintiffs cite to Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 881 (“Mount Vernon”) and argue that one may be liable for battery even if one throws water upon the other.  However, in Mount Vernon, a nightclub dancer was set on fire after having flammable liquid thrown on her.  (Mount Vernon, supra, 219 Cal.App.4th at pp. 878-879.)  Here, in contrast, Veronica Zuniga only alleges she felt the heat of a bullet that missed her face and Brian Zuniga heard the shots striking the walls and windows of their residence.  These allegations are insufficient to allege a claim for battery.  There are no allegations that anything touched Brian Zuniga or Manuel Zuniga, and the allegation that Veronica Zuniga felt heat from an adjacent bullet is insufficient to constitute a “touching.”   

IV.     CONCLUSION

Defendant’s demurrer to the causes of action for assault and battery are SUSTAINED without leave to amend.

Defendant’s motion to strike is GRANTED.

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.