Judge: William A. Crowfoot, Case: 22STCV29179, Date: 2022-12-14 Tentative Ruling

Case Number: 22STCV29179    Hearing Date: December 14, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On September 6, 2022, plaintiff Joseph A. Bowerbank, Jr. (“Plaintiff”) filed this action against defendants Dawar Alimi (“Alimi”), Rick Webster (“Webster”), and Cre8tech Labs Inc. dba Lender Price (“Lender Price”) (collectively, “Defendants”).  Plaintiff asserts causes of action for negligence, battery, assault, intentional infliction of emotional distress (“IIED”), and negligent infliction of emotional distress (“NIED”).  Plaintiff alleges that on or about June 6, 2022, he attended a trade show in Dana Point, which was also attended by Alimi and Webster.  (Compl., ¶ 13.)  Alimi is Lender Price’s founder and CEO and Webster is Lender Price’s Chief Marketing Officer.  (Ibid.)  Plaintiff alleges that during the event, he was physically attacked by Alimi and Webster.  (Compl., ¶ 14.)  Plaintiff alleges that Lender Price knew of Alimi and Webster’s propensity for this conduct and ratified their actions.

          On November 7, 2022, Defendants filed this demurrer to each cause of action.  On November 30, 2022, Plaintiff filed an opposition brief.  On December 7, 2022, Defendants filed a reply brief.

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

Meet and Confer

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).)  

          Martin J. Kaufman declares that on November 3, 2022, he met and conferred with Plaintiff’s counsel by telephone.  The meet and confer requirement is satisfied.

First Cause of Action: Negligence

          Defendants argue that Plaintiff fails to allege a cause of action for negligence by any of the defendants because it is clear that the conduct alleged by the individual defendants, Webster and Alimi, constitute intentional torts. Defendants cite to Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869, and claims that "[i]f conduct is negligent, it is not willful; if it is willful, it is not negligent.”  In opposition, Plaintiff argues that he is entitled to plead alternative theories of negligence and intentional tort. 

Plaintiff has the better argument.  In Donnelly, the court did not hold that a party could not plead negligence as an alternative theory to an intentional tort like assault and battery.  Instead, the Donnelly court analyzed the distinction between ordinary negligence and gross negligence.  In contrast, in American Employer’s Ins. Co. v. Smith (1980) 105 Cal.App.3d 94, 101, which Plaintiff cites in his opposition, the court found that “it is not a defense to negligence to contend that the conduct was willful or the harm intended.” 

          Defendant also argues that there are insufficient factual allegations that Lender Price was negligent.  Plaintiff alleges that Lender Price was negligent because it knew or should have known of Webster and Alimi’s violent propensities and that they were unfit agents.  (Compl., ¶ 21.)  Plaintiff also alleges that Lender Price ratified Webster and Alimi’s actions.   

          Defendant argues that these allegations are too conclusory.  However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  Further, Plaintiff states in his opposition brief that his theory of liability is based on respondeat superior as well as ratification of Webster and Alimi’s tortious conduct.  (Opp., 6:1-9.)  All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.  (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 157.) 

          Accordingly, Defendants’ demurrer to the First Cause of Action is OVERRULED.

Second, Third and Fourth Causes of Action as Against Lender Price: Battery, Assault and IIED

          Defendants argue that Lender Price cannot be held liable for Webster and Alimi’s conduct because there is no causal nexus between their employment and the altercation.  In opposition, Plaintiff argues that Alimi and Webster were attending the trade show on behalf of Lender Price and representing Lender Price and, therefore, they were acting within the scope of their employment.  (Opp., 8:7-16.)   

          An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment.  (See Montague v. AMN Healthcare, Inc.  (2014) 223 Cal.App.4th 1515, 1520; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)  For the employer to be liable for an intentional tort, the employee’s act must have a “causal nexus to the employee’s work,” i.e., “inherent in the working environment” or “typical” to the employer’s business.  (See Montague, supra, 223 Cal.App.4th at p. 1521; Lisa M., supra, 12 Cal.4th at pp. 298-99.)  The employee’s conduct falls within the scope of his employment and is thus a causal nexus if the conduct either: (1) is required by or incidental to the employee’s duties; or (2) it is reasonably foreseeable in light of the employer’s business.  (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.)  “That the employment brought tortfeasor and victim together in time and place is not enough [to satisfy the nexus required for respondeat superior liability].”  (Lisa M., supra, 12 Cal.4th at p. 298.)  However, an employer may also be liable for an employee’s acts where the employer subsequently ratified an originally unauthorized tort.  (Baptist v. Robinson (2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.”  (Ibid.)  “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.”  (Ibid.)

          Webster and Alimi are alleged to be the chief marketing and chief executive officers of Lender Price.  There are no allegations suggesting that engaging in a physical altercation at a trade show is conduct that is required or incidental to their duties as officers of Lender Price, or reasonably foreseeable in the context of Lender Price’s business.  Additionally, the bare allegation that Lender Price “ratified such acts” is conclusory and fails to plead facts that would constitute ratification.  (Compl., ¶ 17.) 

          Accordingly, Lender Price’s demurrer to the Second, Third, and Fourth Causes of Action for Battery, Assault, and IIED is SUSTAINED with 20 days’ leave to amend. 

Second, Third and Fourth Causes of Action as Against Webster and Alimi: Battery, Assault and IIED

Next, Defendants argue that Plaintiff fails to state causes of action for assault, battery, and IIED against Webster and Alimi.  This argument is less persuasive.   

          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.”  (So v. Shin (2013) 212 Cal.App.4th 652, 669).  “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.”  (Id. at pp. 668-69.)  A cause of action for IIED exists when there is “(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.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) 

          With respect to Plaintiff’s battery causes of action for assault and battery, Defendants claim that Plaintiff fails to allege that he believed he would be touched, was in fact touched or that any touching was “harmful.”  (Compl., ¶ 14.)  This argument is absurd.  Plaintiff alleges that Alimi “grabbed and violently threw [Plaintiff] to the ground.”  Plaintiff further alleges that Alimi “threw a flurry of punches and strikes” aimed at Plaintiff’s head and that Webster “kicked and struck [Plaintiff] while he was on the ground, including striking Plaintiff in the head.”  (Compl., ¶ 14.)  Defendants’ inquiry of the logistics involved in punching and kicking Plaintiff is not well-taken.  (Demurrer, 8:24-26.)  Further, whether Plaintiff’s own conduct invited the attack is an issue that Defendants may raise in their answer and is not a ground for demurrer.  (Demurrer, 8:26-28.)

          With respect to Plaintiff’s cause of action for IIED, Defendants argue that Plaintiffs fail to allege that: (1) he suffered severe emotional distress, (2) any conduct was extreme or outrageous, (3) Alimi and Webster acted with intent.  The Court disagrees.  Plaintiff alleges that he suffered “severe emotional distress including suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame” as a result of Alimi and Webster’s conduct.  (Comp., ¶¶ 49-50.)  Furthermore, whether Alimi and Webster’s conduct was privileged is an affirmative defense to be raised in Defendants’ answer.  Last, Plaintiff alleges that Alimi and Webster “intended to cause Plaintiff’s emotional distress, or . . . acted with reckless disregard of the probability that Plaintiff would suffer emotional distress.”  Given the Complaint as a whole and its allegations that Alimi and Webster physically attacked Plaintiff, which included throwing him to the ground, punching him, and kicking him, the Court concludes that at this stage, Plaintiff has adequately alleged that Defendants acted with intent. 

          Webster and Alimi’s demurrer to the Second, Third, and Fourth Causes of Action is OVERRULED.

          Fifth Cause of Action: NIED

          California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply.  (See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Here, Plaintiff has already alleged a cause of action for negligence based on the same facts as Plaintiff’s claim for NIED.  To this extent, the negligence and NIED causes of action are duplicative and the demurrer to the NIED cause of action may be sustained on such grounds.  (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (stating that a demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery”; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) 

          Accordingly, Defendants’ demurrer is SUSTAINED without leave to amend.

IV.     CONCLUSION

Defendants’ demurrer to the First Cause of Action is OVERRULED.  Defendants’ demurrer to the Fifth Cause of Action is SUSTAINED without leave to amend.

Lender Price’s demurrer to the Second, Third, and Fourth Causes of Action is SUSTAINED with leave to amend.

Webster and Alimi’s demurrer to the Second, Third, and Fourth Causes of action is OVERRULED.

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.