BRIAN KEYS ET AL VS THE CADILLAC HOTEL ET AL

Tentative Rulings

Case Number: ****2859 Hearing Date: December 22, 2021 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY: Defendant Sris Sinnathamby

RESPONDING PARTY: Plaintiff Brian Keys

1. Defendant Sinnathamby’s Demurrer

2. Defendant Sinnathamby’s Motion to Strike

The court considered the moving, opposition, and reply papers filed in connection with each motion.

MOVING PARTY: Defendant Venice Development, Inc.

RESPONDING PARTY: Plaintiff Brian Keys

1. Defendant Venice Development, Inc.’s Demurrer

2. Defendant Venice Development, Inc.’s Motion to Strike

The court considered the moving, opposition, and reply papers filed in connection with each motion.

BACKGROUND

Plaintiffs Brian Keys (“Keys”) and Maize Baskerville (“Baskerville”) filed this action on August 17, 2017 (collectively, “Plaintiffs”). Plaintiffs filed the operative Second Amended Complaint (“SAC”) on March 19, 2018, against defendants The Cadillac Hotel and Sris Sinnathamby (“Sinnathamby”). Plaintiffs amended the SAC on May 1, 2020, to substitute defendant Venice Development, Inc. (“Venice Development”) as the true name for the defendant sued under the fictitious name Doe 1. On April 2, 2020, the action was dismissed as to plaintiff Baskerville.

The SAC alleges the following causes of action: (1) violation of California Civil Code section 51.7, (2) violation of California Civil Code section 52.1, (3) battery and assault, (4) violation of California Civil Code section 43, (5) intentional infliction of emotional distress, and (6) negligent infliction of emotional distress.

The SAC alleges the following. The Cadillac Hotel is a hotel located in Venice, California. On or about August 30, 2015, Keys was asleep on public property near the hotel, when the hotel’s security guard (identified as “Guzman”) walked up to Keys and told him, “You guys can’t sleep here.” (SAC, 11-12.) Keys responded, “You can’t tell me where I can sleep.” (SAC, 12.) Guzman then drew a gun in a threatening manner toward Keys, and Keys moved away from the area and towards the beach, where Baskerville was seated in his wheelchair. (SAC, 12.) Sinnathamby, the owner of the hotel, came over and yelled at Plaintiffs, telling them that they cannot sleep there. (SAC, 13.) Sinnathamby got enraged at Baskerville’s remarks and ordered Guzman to “shoot those niggers.” (SAC, 15.) At Sinnathamby’s command, Guzman fired four shots in the air and in the direction of Plaintiffs. (SAC, 16.) As a result, Keys was hit on the legs and shin by the bullets. (SAC, 17.) The bullets came very close to striking Baskerville. (SAC, 18.) Terrified and in fear for his life, Baskerville pleaded with Sinnathamby to tell Guzman to put the gun away, but Sinnathamby ignored him. (SAC, 19.) Hearing sirens from a distance, Sinnathamby urged Guzman to leave the premises. (SAC, 20.) Guzman fled the scene. (SAC, 20.) Guzman was acting in the course and scope of his employment or agency with defendants when he shot Keys. (SAC, 6.)

Defendants Sinnathamby and Venice Development (collectively, “Defendants”) demur to the entire SAC on the ground that it is uncertain. (Code Civ. Proc., 430.10, subd. (f).) Defendant Sinnathamby also demurs to the fifth cause of action for intentional infliction of emotional distress and sixth cause of action for negligent infliction of emotional distress, contending that they fail to state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).) Defendants move to strike the punitive damages allegations and prayer for punitive damages in the SAC. Keys opposes the demurrers and motions to strike.

REQUESTS FOR JUDICIAL NOTICE

The court grants defendant Sinnathamby’s request for judicial notice, filed September 30, 2019, as to Exhibits A and B.

The court grants defendant Venice Development’s request for judicial notice, filed July 15, 2020, as to Exhibits A and B.

DEMURRERS TO THE SAC

A demurrer can only be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

1. Uncertainty

Defendants demur to the entire SAC, and all causes of action, on the ground that they are uncertain. (Code Civ. Proc., 430.10, subd. (f).) As used in Code of Civil Procedure section 430.10, subdivision (f), “‘uncertain’ includes ambiguous and unintelligible.” “[D]emurrers for uncertainty are disfavored.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respect uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Defendants contend that the SAC is uncertain because Keys’s testimony, in a criminal case brought against Guzman, undermines and contradicts Plaintiffs’ allegations in the SAC. However, Defendants are asking the court to accept as true the matters stated in its judicially noticed documents. “Although in ruling on a demurrer courts may take judicial notice of files in other judicial proceedings [citation], this does not mean that they take judicial notice of the truth of factual matters asserted therein.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) Here, even if the court has taken judicial notice of Keys’s testimony in the criminal proceeding, the court cannot accept as true the matters stated in that testimony.

The court finds that the SAC and all causes of action alleged are not uncertain because they are neither ambiguous nor unintelligible. (Code Civ. Proc., 420.10, subd. (f).) The court therefore overrules Defendants’ demurrers to the SAC on the ground that it, and all causes of action, are uncertain.

1. Fifth Cause of Action – Intentional Infliction of Emotional Distress

Defendant Sinnathamby demurs to Plaintiffs’ fifth cause of action for intentional infliction of emotional distress on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).)

“A cause of action for intentional infliction of emotional distress 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.’”’” [Citations.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

Here, the court finds that the SAC alleges facts sufficient to establish the first element. The SAC alleges the following. Sinnathamby, as the owner of The Cadillac Hotel, ordered the hotel’s security guard (Guzman) to shoot Keys. (SAC, 15.) On that command, Guzman shot in the air and in the direction of Keys, shooting Keys. (SAC, 16.) In addition, all defendants were agents, servants, or employees of one another, and they ratified Guzman’s actions. (SAC, 7-8.) The court finds that those allegations satisfy the first element because they show that Defendants engaged in extreme and outrageous conduct, with the intention of causing, or in reckless disregard of the probability of causing, Keys emotional distress.

The court also finds that the SAC alleges facts sufficient to establish the second and third elements. The SAC alleges that, as the result of Defendants’ conduct (including Sinnathamby’s ordering Guzman to shoot Keys), Keys suffered severe emotional and mental distress, anguish, humiliation, embarrassment, fright, shock, pain, discomfort, anxiety, physical pain, and suffering. (SAC, 15, 55.) In addition, some, if not all, of those injuries are reasonably certain to be permanent. (SAC, 55.) The court finds that those allegations satisfy the second and third elements because they establish severe or extreme emotional distress and actual and proximate causation of the emotional distress by Defendants’ outrageous conduct.

For the reasons set forth above, the court finds that the SAC states facts sufficient to constitute a cause of action for intentional infliction of emotional distress. (Code Civ. Proc., 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer as to Plaintiffs’ fifth cause of action for intentional infliction of emotional distress.

1. Sixth Cause of Action – Negligent Infliction of Emotional Distress

Defendant Sinnathamby demurs to Plaintiffs’ sixth cause of action for negligent infliction of emotional distress on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).) Defendant Sinnathamby contends that the SAC does not allege any facts establishing that Defendants owed a duty to Plaintiffs, or that they breached that duty, causing damage to Plaintiffs.

“‘“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . .’ [Citation.] ‘The traditional elements of duty, breach of duty, causation, and damages apply. [ ] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’” [Citation.]” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) A “direct victim” case is one in which the plaintiff’s claim of emotional distress is based on the violation of a duty that the defendant owes directly to the plaintiff. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205.) “[D]uty is found where the plaintiff is a ‘direct victim,’ in that the emotional distress damages result from a duty owed the plaintiff ‘that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”’ [Citation.]” (McMahon v. Craig (2009) 176 Cal.App.4^th 1502, 1510.)

Here, Defendants had a duty to use reasonable care to prevent harm to Keys and others. (Civ. Code, 1714, subd. (a) [“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .”]; Judicial Council of California Civil Jury Instructions, CACI 401.) “‘[T]here is a duty to refrain from the negligent infliction of serious mental distress.’” (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928, quoting Rodrigues v. State (1970) 52 Hawaii 472 P.2d 509, 520.)

The SAC alleges breach of duty of care by alleging that Sinnathamby ordered his employee, Guzman, to shoot Keys. (SAC, 15.) The SAC also alleges the elements of causation and damages by alleging that, as a result of Defendants’ conduct, Keys was physically injured and suffered severe emotional and mental distress. (SAC, 16, 17, 60.)

For the reasons set forth above, the court finds that the SAC states facts sufficient to constitute a cause of action for negligent infliction of emotional distress. (Code Civ. Proc., 430.10, subd. (e).) The court therefore overrules Defendants’ demurrer to the sixth cause of action for negligent infliction of emotional distress.

MOTIONS TO STRIKE

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).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. 437, subd. (a).)

Defendants move to strike the punitive damages allegations and prayer for punitive damages in the SAC. They contend that those allegations are improper because the SAC fails to allege that Defendants acted with oppression, fraud, or malice.

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, 3294, subd. (a).)” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, 3294, subd. (c)(2).) “ ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, 3294, subd. (c)(3).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ. Code, 3294, subd. (c)(1).)

Here, the court finds that the SAC alleges facts establishing oppression and malice. The SAC alleges that Sinnathamby (using a racial slur to refer to Keys) ordered Guzman, his employee, to shoot Keys, and that Guzman shot Keys. Those allegations are sufficient to establish oppression, because they show that Defendants subjected Keys to cruel and unjust hardship in conscious disregard of his rights. Those allegations also establish malice, because they show that Defendants intended to cause injury to Keys, or engaged in despicable conduct, with a willful and conscious disregard for the rights or safety of Keys. The court therefore denies Defendants’ motion to strike portions of the SAC, including its prayer for punitive damages. (Code Civ. Proc., 436, subd. (a).)

ORDER

For the reasons set forth above, court overrules defendants Sris Sinnathamby and Venice Development, Inc.’s demurrers to the Second Amended Complaint.

The court denies defendants Sris Sinnathamby and Venice Development, Inc.’s motions to strike portions of the Second Amended Complaint.

The court orders defendants Sris Sinnathamby and Venice Development, Inc. to file answers to the Second Amended Complaint within 20 days of the date of this order.

The court orders plaintiff Brian Keys to give notice of this ruling.

IT IS SO ORDERED.

DATED: December 22, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court