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This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 04:54:53 (UTC).

GREGORY JOHN GENCO JR VS HOLLYWOOD PALLADIUM THEATER ET AL

Case Summary

On 10/12/2017 GREGORY JOHN GENCO JR filed a Personal Injury - Other Personal Injury lawsuit against HOLLYWOOD PALLADIUM THEATER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9475

  • Filing Date:

    10/12/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

GENCO GREGORY JOHN JR.

Defendants and Respondents

HOLLYWOOD PALLADIUM THEATER

LIVE NATION WORLDWIDE INC

DOES 1 TO 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WOLF MARVIN LOUIS ESQ.

WOLF MARVIN LOUIS

Defendant and Respondent Attorneys

SCHONBUCH MICHAEL N. ESQ.

SCHONBUCH MICHAEL NEIL

 

Court Documents

Unknown

1/2/2019: Unknown

Notice

1/11/2019: Notice

Minute Order

2/21/2019: Minute Order

DEFENDANTS NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES CLAIMS FROM PLAINTIFFS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

3/13/2018: DEFENDANTS NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES CLAIMS FROM PLAINTIFFS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

NOTICE OF CASE MANAGEMENT CONFERENCE

3/16/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

Unknown

4/4/2018: Unknown

Minute Order

4/19/2018: Minute Order

CASE MANAGEMENT ORDER

4/19/2018: CASE MANAGEMENT ORDER

DEFENDANT LIVE NATION WORLDWIDE, INC.'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANTS SPECIAL INTERROGATORIES, SET ONE

5/29/2018: DEFENDANT LIVE NATION WORLDWIDE, INC.'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANTS SPECIAL INTERROGATORIES, SET ONE

NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANT LIVE NATION WORLDWIDE, INC.'S SPECIAL INTERROGATORIES, SET ONE, ETC

5/29/2018: NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANT LIVE NATION WORLDWIDE, INC.'S SPECIAL INTERROGATORIES, SET ONE, ETC

NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANT LIVE NATION WORLDWIDE, INC.'S FORM INTERROGATORIES, SET ONE, ETC

5/29/2018: NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANT LIVE NATION WORLDWIDE, INC.'S FORM INTERROGATORIES, SET ONE, ETC

NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANT LIVE NATION WORLDWIDE, INC.'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, ETC

5/29/2018: NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO DEFENDANT LIVE NATION WORLDWIDE, INC.'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, ETC

Minute Order

7/20/2018: Minute Order

LAW AND MOTION RULINGS

8/28/2018: LAW AND MOTION RULINGS

SECOND AMENDED COMPLAINT FOR:NEGLIGENCE;PREMISES LIABILITY;AND ETC.

9/18/2018: SECOND AMENDED COMPLAINT FOR:NEGLIGENCE;PREMISES LIABILITY;AND ETC.

DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES CLAIMS FROM PLAINTIFF'S COMPLAINT; ETC.

1/8/2018: DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES CLAIMS FROM PLAINTIFF'S COMPLAINT; ETC.

SUMMONS

10/12/2017: SUMMONS

36 More Documents Available

 

Docket Entries

  • 07/20/2019
  • Order; Filed by Clerk

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  • 05/22/2019
  • at 08:30 AM in Department 37; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer - Not Held - Advanced and Continued - by Court

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  • 05/13/2019
  • Order (INFORMAL DISCOVERY CONFERENCE ORDER); Filed by GREGORY JOHN JR. GENCO (Plaintiff)

    Read MoreRead Less
  • 05/09/2019
  • at 4:00 PM in Department 37; Informal Discovery Conference (IDC) - Held

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  • 05/09/2019
  • Minute Order ( (Informal Discovery Conference (IDC))); Filed by Clerk

    Read MoreRead Less
  • 04/23/2019
  • at 09:30 AM in Department 37; Jury Trial - Not Held - Continued - Party's Motion

    Read MoreRead Less
  • 04/15/2019
  • at 08:30 AM in Department 37; Final Status Conference - Not Held - Continued - Party's Motion

    Read MoreRead Less
  • 03/22/2019
  • Notice (OF MANDATORY SETTLEMENT CONFERENCE); Filed by GREGORY JOHN JR. GENCO (Plaintiff)

    Read MoreRead Less
  • 02/25/2019
  • at 08:30 AM in Department 37; Hearing on Ex Parte Application ( for an Order to Continue Trial, Final Status Conference, and all Related Deadlines; Memorandum of Points and Authorities; Declaration of Pedram Zivari; and Proposed Order) - Held

    Read MoreRead Less
  • 02/25/2019
  • Ex Parte Application (Plaintiff's Ex Parte Application for an Order to Continue Trial, Final Status Conference, and all Related Deadlines; Memorandum of Points and Authorities; Declaration of Pedram Zivari; and Proposed Order); Filed by GREGORY JOHN JR. GENCO (Plaintiff)

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78 More Docket Entries
  • 02/13/2018
  • Notice; Filed by LIVE NATION WORLDWIDE INC (Defendant)

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  • 02/06/2018
  • First Amended Complaint; Filed by GREGORY JOHN JR. GENCO (Plaintiff)

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  • 02/06/2018
  • FIRST AMENDED COMPLAINT FOR: (1) NEGLIGENCE; (2) PREMISES LIABILITY; (3) NEGLIGENT HIRING OF EMPLOYEE/AGENT; (4) NEGLIGENT RETENTION OF EMPLOYEE/AGENT; (5) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (6) ASSAULT; (7) BATTERY; AND (8) FALSE IMPRISONMENT;

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  • 01/08/2018
  • Motion to Strike; Filed by LIVE NATION WORLDWIDE INC (Defendant)

    Read MoreRead Less
  • 01/08/2018
  • DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES CLAIMS FROM PLAINTIFF'S COMPLAINT; ETC.

    Read MoreRead Less
  • 12/13/2017
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 12/13/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 10/12/2017
  • Complaint; Filed by GREGORY JOHN JR. GENCO (Plaintiff)

    Read MoreRead Less
  • 10/12/2017
  • SUMMONS

    Read MoreRead Less
  • 10/12/2017
  • COMPLAINT FOR: (1) NEGLIGENCE; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC679475    Hearing Date: October 01, 2020    Dept: 37

HEARING DATE: October 1, 2020 continued from September 16, 2020

CASE NUMBER: BC679475

CASE NAME: Gregory John Genco Jr. v. Hollywood Palladium Theater, et al.

TRIAL DATE: November 16, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Quash Service of Summons

MOVING PARTY: Defendant, Christopher London

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: London’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

MOTION: Defendant’s Demurrer to the Third Amended Complaint; Defendant’s Motion to Strike Portions of Third Amended Complaint

MOVING PARTY: Defendant, Christopher London

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: London’s demurrer to the TAC is overruled. London’s motion to strike is DENIED in its entirety. Moving party is to give notice.

MOTION: Defendant’s Motion to Quash Service of Summons

MOVING PARTY: Defendant, Charles Coleman

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: Coleman’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

MOTION: Defendant’s Demurrer to the Third Amended Complaint

MOVING PARTY: Defendant, Charles Coleman

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: Coleman’s demurrer to the TAC is overruled. Moving party is to give notice.

MOTION: Defendants’ Motion to Strike Portions of Third Amended Complaint

MOVING PARTIES: Defendants, Charles Coleman and Live Nation Worldwide, Inc. (erroneously sued and served as Hollywood Palladium Theater)

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: Coleman and Live Nation’s motion to strike is DENIED. Moving party is to give notice.

Background

This case arises from allegations that Plaintiff Gregory John Genco, Jr. (“Plaintiff”) was assaulted and battered while and immediately after he suffered from a seizure during a concert hosted at the Hollywood Palladium Theater in Hollywood, California on October 13, 2016. Plaintiff alleges that shortly after arriving at the venue, unbeknownst to him out and out of his control, he suffered a seizure and fell on the floor while the concert was ongoing. The Complaint alleges that Plaintiff was still seizing on the floor when he was approached by a number of Hollywood Palladium’s staff and security guards who started asking Plaintiff about his fall and how it happened. The Complaint further alleges that Plaintiff’s lack of response and uncontrollable body movements caused by his seizure was misinterpreted as combative behavior. The Complaint alleges that due to this misinterpretation, Hollywood Palladium staff and security guard attempted to arrest Plaintiff by physically and violently attacking him.

According to the Complaint, Plaintiff was forced to the floor, handcuffed, and forced outside of the venue by security guard and paramedics. The Complaint further alleges that Plaintiff was eventually transferred by ambulance and was admitted to Hollywood Presbyterian Medical Center, where he was allegedly treated for various physical injuries caused by Defendant, Live Nation Worldwide, Inc.’s (erroneously sued as served as Hollywood Palladium Theater, “Live Nation”) agents.

Plaintiff filed his operative Third Amended Complaint (“TAC”) on June 3, 2019. The TAC alleges the following 8 causes of action: (1) negligence, (2) premises liability, (3) negligent hiring of employee/agent, (4) negligent retention of employee/agent, (5) intentional infliction of emotional distress, (6) assault, (7) battery, and (8) false imprisonment.

On September 23, 2019, the court denied Live Nation’s Motion to Strike Punitive Damages from the TAC, finding that the TAC’s new factual allegations were sufficient to sustain a claim for punitive damages.

On March 3, 2020, Plaintiff filed amendments to the TAC naming Christopher London (“London”) as Doe 3 and Charles Coleman (“Coleman”) as Doe 4. On April 8, 2020, Plaintiff dismissed his claim for punitive damages against Live Nation.

London now moves to quash service of the Summons and Doe Amendment as to him. London also demurs to the TAC and moves to strike portions of the TAC. Similarly, Coleman moves to quash service of the Summons and Doe Amendment as to him and demurs to the TAC. Finally, Coleman and Live Nation move to strike portions of the TAC.

Plaintiff opposes all motions. Because both London and Coleman have brought motions to quash service of summons, the court will address both motions to quash together before turning to the remaining motions individually.

MOTION TO QUASH SERVICE OF SUMMONS

Discussion

  1. Legal Standard

Code of Civil Procedure, section 474 provides in relevant part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly….”  (Code Civ. Proc., § 474.)  A plaintiff must substitute in the name of the Doe defendant when the plaintiff learns the individual’s name and the facts giving rise to liability.  (E.g., Optical Surplus v. Superior Court (1991) 228 Cal.App.3d 776, 783-784 [recognizing that a plaintiff’s earlier knowledge of the facts giving rise to his or her claims bars a plaintiff from naming an individual as a Doe defendant].)   

  1. Analysis

Coleman contends that service of summons and the doe amendment must be quashed as to him because Plaintiff knew of his identity and the facts giving rise to Plaintiff’s claims against him prior to the TAC being filed. (Coleman Motion to Quash, pp. 6-8.) Specifically, Coleman contends that because his deposition as a percipient witness was taken in February 13, 2019 and relates to the heart of Plaintiff’s alleged injuries, Plaintiff knew of facts giving rise to a claim against Coleman since at least that time and untimely named him as a doe defendant on March 3, 2020. (Id.) Similarly, London argues that Plaintiff knew of facts giving rise to a claim against him prior to the filing of the TAC because London’s deposition as a percipient witness was taken on March 18, 2019 and also allegedly goes to the heart of Plaintiff’s alleged injuries. (London Motion to Quash, pp. 5-7.)

In opposition to each motion, Plaintiff contends that he did not know of facts giving rise to a claim against either Coleman or London until after he received further responses from Live Nation to discovery he propounded following Coleman’s deposition. Plaintiff’s counsel, Pedram Zivari (“Zivari”) attests that after Coleman’s February 3, 2019 deposition, Plaintiff served special interrogatories on Live Nation to investigate Coleman’s testimony that Plaintiff kicked and punched multiple security guards. (Zivari Decl. ¶¶ 3-4.) Zivari attests that because Live Nation refused to respond, the parties went to an Informal Discovery Conference (“IDSC”) on May 13, 2019, after which the court ordered as follows:

“The Defendants are ORDERED to conduct an investigation, as part of their duty to obtain information under the Discovery Act, in order to identify the security guards who had physical contact with the Plaintiff (Special Interrogatory #44), who were punched by the Plaintiff (Special Interrogatory #45), who were kicked by the Plaintiff (Special Interrogatory #46) and who were restraining the Plaintiff by grabbing Plaintiff’s legs (Special Interrogatory #51)”

(Declaration of Pedram Zivari (“Zivari”) in Support of Opposition, ¶ 9, Exhibit D.) Further, Live Nation was ordered to provide supplemental responses to these interrogatories and provide the contact information for security guards who had contact with Plaintiff but who Live Nation could not contact.

Finally, Zivari attests that Live Nation served Plaintiff with the results of its May 13, 2019 court ordered investigation on July 8, 2019. (Id. at ¶ 9.) Zivari attests that because these responses “greatly contradicted” Coleman’s deposition testimony, Plaintiff was required to further investigate for the next several months before Plaintiff had sufficient facts to name Coleman and London as doe defendants on March 3, 2020. (Id. at ¶¶ 10-12.)

In reply, London and Coleman similarly contends Plaintiff knew or should have known of facts giving rise to his causes of action against them before filing the TAC because both testified to being at the Hollywood Palladium on October 13, 2016 and to handcuffing Plaintiff. (see Reply to London Motion to Quash, pp. 2-3.)

The court notes that the TAC alleges that while Plaintiff was alleging having a seizure on the floor, Hollywood Palladium’s staff, including “at least two off-duty Los Angeles Police Department officers,” attacked Plaintiff and attempted to restrain him. (TAC ¶ 19.) Thereafter, the TAC alleges that Hollywood Palladium staff, including “at least two off-duty Los Angeles Police Department officers,” restrained Plaintiff when he placed his hand in his pocket while disoriented immediately after his seizure. (TAC ¶¶ 21-22.) Further, when Plaintiff allegedly asked to leave the venue, Hollywood Palladium staff, “including at least two off-duty Los Angeles Police Department officers,” again restrained him, causing physical injuries. (TAC ¶¶ 24-28.) The court also notes that Plaintiff’s original Complaint includes no allegations of any involvement by off-duty Los Angeles Police Department officers” on October 13, 2016 in Plaintiff’s original description of the incident. Further, Plaintiff’s original Complaint only alleges in a conclusory fashion that doe defendants had duties to Plaintiff, and that Live Nation assisted in doe defendants falsely imprisoning Plaintiff. (Complaint ¶¶ 46, 48, 89.)

Thus, based on the above comparison between the TAC and the Complaint, the court finds that Plaintiff was truly ignorant of Coleman and London’s identities and the facts giving rise to claims against them at the time of the original Complaint. The original Complaint does not include any allegations that Plaintiff was assaulted by “off-duty Los Angeles Police Department officers,” or by anyone outside of Hollywood Palladium’s staff.

Having found that Plaintiff was truly ignorant of Coleman and London’s identities at the time of the original Complaint, the court will now analyze whether, after learning of facts giving rise to claims against Coleman and London, Plaintiff unreasonably delayed in filing doe amendments. (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8 [“unreasonable delay in filing an amendment after actually acquiring such knowledge can bar a plaintiff's resort to the fictitious name procedure.”].)

In analyzing whether Plaintiff’s doe amendments were untimely, the court first notes that Coleman’s deposition as taken on February 3, 2019, while London’s deposition was taken on March 18, 2019. Thus, the question is whether the subsequent approximately one-year delay between these dates and March 3, 2020 constitutes an unreasonable delay in filing the doe amendments.

As discussed above, Coleman and London both similarly ague that Plaintiff’s delay in filing the doe amendment was unreasonable because both testified to being present at the Hollywood Palladium on October 13, 2016 and being involved in Plaintiff’s arrest. In opposition, Plaintiff argues that the delay was not unreasonable because Plaintiff had to resolve conflicts between Coleman’s testimony and Live Nation’s responses regarding which of its staff and security guards were involved with Plaintiff’s arrest.

The court is persuaded by Plaintiff’s arguments. Plaintiff has alleged in the TAC that he suffered a seizure on October 13, 2016 and that various parties, including Hollywood Palladium staff, security guard(s) and off-duty Los Angeles Police Department officers were involved in wrongfully assaulting him and arresting him after his seizure. Thus, although Coleman and London testified to being involved in the arrest, it was not unreasonable, based on the TAC’s allegations, for Plaintiff to further investigate the facts surrounding Coleman and London’s involvement. The court is also persuaded that Plaintiff required additional time to investigate inconsistencies between Live Nation’s discovery responses and Coleman and London’s testimony.

Finally, Coleman and London have failed to demonstrate that they will be prejudiced by the doe amendments, as neither Coleman nor London’s motion to quash includes any showing that the doe amendment is prejudicial. In order to prevail on a motion to bar amendment under section 474 on grounds of unreasonable delay, a defendant “must show not only that the plaintiff was dilatory but also ‘that defendant suffered prejudice from any such delay.”  (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066 (A.N.))  

Although Coleman and London argue in reply that no showing of prejudice was required, their arguments are unavailing. For example, Coleman and London both cite to Hazel v. Hewlett (1988) 201 Cal.App.3d 1458 (Hazel) in support of their argument. However, the Court of Appeal in Hazel found that prejudice alone was not sufficient to defeat a doe amendment when Plaintiff was not truly ignorant of facts giving rise to a cause of action against the doe defendant. (Id. at 1466.) Based on the guidance from A.N. and similar authority, Coleman and London were also required to demonstrate prejudice from the timing of Plaintiff’s doe amendment in order to demonstrate that Plaintiff’s doe amendments should be quashed based on Plaintiff’s unreasonable delay in filing them.

Thus, Coleman and London’s motions to quash service are both denied. Plaintiff has demonstrated that his delay in filing doe amendments as to both Coleman and London was not unreasonable because Plaintiff reasonably needed to investigate Coleman and London’s individual liability, and Plaintiff could not have reasonably learned of the facts giving rise to claims against Coleman and London individually at the time of the original Complaint. Further, Coleman and London make no showing that they are prejudiced by the timing of Plaintiff’s doe amendment, and such a showing was required based on guidance from A.N. and other similar authority.

Conclusion

Coleman’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

London’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

LONDON’S DEMURRER

Discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

London contends that each cause of action of the TAC fails to plead facts sufficient to state a cause of action against him because the doe amendment naming him as a defendant was improper and should be quashed. (Demurrer, 1-5.)

However, as discussed above, the court denied London’s motion to quash service of summons and the doe amendment because London has made no showing that he would be prejudiced by the doe amendment. Thus, because London does not demurrer to the TAC on any other basis, London’s demurrer is overruled.

Having overruled London’s demurrer on this basis, the court does not reach the remainder of the parties’ arguments.

Conclusion

London’s demurrer to the TAC is overruled. Moving party is to give notice.

LONDON’S MOTION TO STRIKE

Meet and Confer Requirement

London submits the declaration of his attorney, Geronimo Perez (“Perez”) to demonstrate that he has complied with his statutory meet and confer obligations pursuant to Code of Civil Procedure, section 435.5 prior to filing the instant motion. Perez attests that on July 30, 2020, he sent a meet and confer email to Plaintiff’s counsel which outlined the arguments in the instant motion and stating he was “available to meet and confer.” (Perez Decl. ¶ 3, Exhibit A.) However, and according to Perez, the parties did not reach an agreement. (Perez Decl. ¶ 4.)

Based on the Perez Declaration, it is unclear whether London has fulfilled his statutory meet and confer obligations prior to filing the instant motion. However, because failure to meet and confer is not grounds for the court to deny the motion, the court will analyze the remainder of the parties’ arguments.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Analysis

London moves to strike various allegations from the TAC in support of Plaintiff’s request for punitive damages from all Defendants, which London contends are inappropriately pled. (Notice of Motion, 2-4.)

“To support punitive damages, the complaint ... must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘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).)

To survive a motion to strike a request for punitive damages, “the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson, supra, 67 Cal.App.4th at p. 1255; accord, Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 ; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91.) However, a “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

London contends that the TAC’s allegations in support of Plaintiff’s claim for punitive damages must be stricken because the TAC fails to allege facts in support of a request for punitive damages with specificity. (Motion, 3-5.) In opposition, Plaintiff contends that the TAC is sufficiently pled as to London in order to request punitive damages in connection with the first, fifth, sixth and seventh causes of action. (Opposition, 6-7.) Further, Plaintiff notes that on April 8, 2020, he dismissed his claim for punitive damages against Live Nation. While Plaintiff argues he has pled sufficient facts for punitive damages on his first cause of action, for negligence, the first cause of action does not plead punitive damages, which are unavailable in a negligence cause of action.

Here, the TAC alleges upon information and belief that while Plaintiff was seizing on the floor, Hollywood Palladium’s staff, including “at least two off-duty Los Angeles Police Department officers,” attacked Plaintiff and attempted to restrain him. (TAC ¶ 19.) Thereafter, the TAC alleges that Hollywood Palladium staff, including “at least two off-duty Los Angeles Police Department officers,” restrained Plaintiff when he placed his hand in his pocket while disoriented immediately after his seizure. (TAC ¶¶ 21-22.) Finally, the TAC alleges that “Defendants, including DOES 1 through 20,” engaged in the “aforesaid despicable conduct with malice.” (TAC ¶¶ 41, 83, 99, 128, 143.)

The court agrees with Plaintiff that the TAC is sufficiently pled for purposes of a motion to strike. As Plaintiff correctly contends, a request for dismissal was filed on April 8, 2020 as to the TAC’s punitive damages claim against Live Nation. Thus, the court denies the portions of London’s motion which relate to allegations against Live Nation as the matter has already been resolved.

With regard to the TAC’s remaining allegations supporting a punitive damages claim against London, the court finds that the TAC is sufficiently pled because the TAC specifically describes involvement by “at least two off-duty Los Angeles Police Department officers” on October 13, 2016. Thereafter, the TAC alleges that defendants, including doe defendants, committed such actions against Plaintiff with malice. Plaintiff was not required to allege facts against London by name because London was later named as a doe defendant. For these reasons, the court denies the remainder of London’s motion.

Conclusion

London’s motion to strike is DENIED in its entirety. Moving party is to give notice.

COLEMAN’S DEMURRER

Discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

Coleman contends that each cause of action of the TAC fails to plead facts sufficient to state a cause of action against him because the doe amendment naming him as a defendant was improper and should be quashed. (Demurrer, 1-5.)

However, as discussed above, the court denied Coleman’s motion to quash service of summons and the doe amendment because Coleman has made no showing that he would be prejudiced by the doe amendment. Thus, because Coleman does not demurrer to the TAC on any other basis, Coleman’s demurrer is overruled.

Having overruled Coleman’s demurrer on this basis, the court does not reach the remainder of the parties’ arguments.

Conclusion

Coleman’s demurrer to the TAC is overruled. Moving party is to give notice.

COLEMAN AND LIVE NATION’S MOTION TO STRIKE

Meet and Confer Requirement

Coleman submits the declaration of his attorney, Geronimo Perez (“Perez”) to demonstrate that he has complied with his statutory meet and confer obligations pursuant to Code of Civil Procedure, section 435.5 prior to filing the instant motion. Perez attests that on May 22, 2020, he sent a meet and confer email to Plaintiff’s counsel which outlined the arguments in the instant motion and stating he was “available to meet and confer.” (Perez Decl. ¶ 3, Exhibit A.) However, and according to Perez, the parties did not reach an agreement. (Perez Decl. ¶ 4.)

Based on the Perez Declaration, it is unclear whether Coleman has fulfilled his statutory meet and confer obligations prior to filing the instant motion. However, because failure to meet and confer is not grounds for the court to deny the motion, the court will analyze the remainder of the parties’ arguments.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Analysis

Coleman and Live Nation move to strike various allegations from the TAC in support of Plaintiff’s request for punitive damages from all Defendants, which Coleman and Live Nation contend are inappropriately pled. (Notice of Motion, 2-4.)

“To support punitive damages, the complaint ... must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘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).)

To survive a motion to strike a request for punitive damages, “the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson, supra, 67 Cal.App.4th at p. 1255; accord, Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 ; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91.) However, a “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Coleman and Live Nation contend that the TAC’s allegations in support of Plaintiff’s claim for punitive damages must be stricken because the TAC fails to allege facts in support of a request for punitive damages with specificity. (Motion, 4-6.) In opposition, Plaintiff contends that the TAC is sufficiently pled as to London in order to request punitive damages in connection with the first, fifth, sixth and seventh causes of action. (Opposition, 6-8.) Further, Plaintiff notes that on April 8, 2020, he dismissed his claim for punitive damages against Live Nation. While Plaintiff argues he has pled sufficient facts for punitive damages on his first cause of action, for negligence, the first cause of action does not plead punitive damages, which are unavailable in a negligence cause of action..

Here, the TAC alleges upon information and belief that while Plaintiff was seizing on the floor, Hollywood Palladium’s staff, including “at least two off-duty Los Angeles Police Department officers,” attacked Plaintiff and attempted to restrain him. (TAC ¶ 19.) Thereafter, the TAC alleges that Hollywood Palladium staff, including “at least two off-duty Los Angeles Police Department officers,” restrained Plaintiff when he placed his hand in his pocket while disoriented immediately after his seizure. (TAC ¶¶ 21-22.) Finally, the TAC alleges that “Defendants, including DOES 1 through 20,” engaged in the “aforesaid despicable conduct with malice.” (TAC ¶¶ 41, 83, 99, 128, 143.)

The court agrees with Plaintiff that the TAC is sufficiently pled for purposes of a motion to strike. As Plaintiff correctly contends, a request for dismissal was filed on April 8, 2020 as to the TAC’s punitive damages claim against Live Nation. Thus, the court denies the portions of Coleman’s motion which relate to allegations against Live Nation as the matter has already been resolved.

With regard to the TAC’s remaining allegations supporting a punitive damages claim against Coleman, the court finds that the TAC is sufficiently pled because the TAC specifically describes involvement by “at least two off-duty Los Angeles Police Department officers” on October 13, 2016. Thereafter, the TAC alleges that defendants, including doe defendants, committed such actions against Plaintiff with malice. Plaintiff was not required to allege facts against Coleman by name because Coleman was later named as a doe defendant. For these reasons, the court denies the remainder of Coleman and Live Nation’s motion.

Conclusion

Coleman and Live Nation’s motion to strike is DENIED. its entirety. Moving party is to give notice..

Case Number: BC679475    Hearing Date: September 16, 2020    Dept: 37

HEARING DATE: September 16, 2020

CASE NUMBER: BC679475

CASE NAME: Gregory John Genco Jr. v. Hollywood Palladium Theater, et al.

TRIAL DATE: November 16, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Quash Service of Summons

MOVING PARTY: Defendant, Christopher London

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: London’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

MOTION: Defendant’s Demurrer to the Third Amended Complaint; Defendant’s Motion to Strike Portions of Third Amended Complaint

MOVING PARTY: Defendant, Christopher London

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: London’s demurrer to the TAC is overruled. London’s motion to strike is DENIED in its entirety. Moving party is to give notice.

MOTION: Defendant’s Motion to Quash Service of Summons

MOVING PARTY: Defendant, Charles Coleman

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: Coleman’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

MOTION: Defendant’s Demurrer to the Third Amended Complaint

MOVING PARTY: Defendant, Charles Coleman

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: Coleman’s demurrer to the TAC is overruled. Moving party is to give notice.

MOTION: Defendants’ Motion to Strike Portions of Third Amended Complaint

MOVING PARTIES: Defendants, Charles Coleman and Live Nation Worldwide, Inc. (erroneously sued and served as Hollywood Palladium Theater)

OPPOSING PARTY: Plaintiff, Gregory John Genco, Jr.

OPPOSITION: September 2, 2020

REPLY: September 9, 2020

TENTATIVE: Coleman and Live Nation’s motion to strike is DENIED. Moving party is to give notice.

Background

This case arises from allegations that Plaintiff Gregory John Genco, Jr. (“Plaintiff”) was assaulted and battered while and immediately after he suffered from a seizure during a concert hosted at the Hollywood Palladium Theater in Hollywood, California on October 13, 2016. Plaintiff alleges that shortly after arriving at the venue, unbeknownst to him out and out of his control, he suffered a seizure and fell on the floor while the concert was ongoing. The Complaint alleges that Plaintiff was still seizing on the floor when he was approached by a number of Hollywood Palladium’s staff and security guards who started asking Plaintiff about his fall and how it happened. The Complaint further alleges that Plaintiff’s lack of response and uncontrollable body movements caused by his seizure was misinterpreted as combative behavior. The Complaint alleges that due to this misinterpretation, Hollywood Palladium staff and security guard attempted to arrest Plaintiff by physically and violently attacking him.

According to the Complaint, Plaintiff was forced to the floor, handcuffed, and forced outside of the venue by security guard and paramedics. The Complaint further alleges that Plaintiff was eventually transferred by ambulance and was admitted to Hollywood Presbyterian Medical Center, where he was allegedly treated for various physical injuries caused by Defendant, Live Nation Worldwide, Inc.’s (erroneously sued as served as Hollywood Palladium Theater, “Live Nation”) agents.

Plaintiff filed his operative Third Amended Complaint (“TAC”) on June 3, 2019. The TAC alleges the following 8 causes of action: (1) negligence, (2) premises liability, (3) negligent hiring of employee/agent, (4) negligent retention of employee/agent, (5) intentional infliction of emotional distress, (6) assault, (7) battery, and (8) false imprisonment.

On September 23, 2019, the court denied Live Nation’s Motion to Strike Punitive Damages from the TAC, finding that the TAC’s new factual allegations were sufficient to sustain a claim for punitive damages.

On March 3, 2020, Plaintiff filed amendments to the TAC naming Christopher London (“London”) as Doe 3 and Charles Coleman (“Coleman”) as Doe 4. On April 8, 2020, Plaintiff dismissed his claim for punitive damages against Live Nation.

London now moves to quash service of the Summons and Doe Amendment as to him. London also demurs to the TAC and moves to strike portions of the TAC. Similarly, Coleman moves to quash service of the Summons and Doe Amendment as to him and demurs to the TAC. Finally, Coleman and Live Nation move to strike portions of the TAC.

Plaintiff opposes all motions. Because both London and Coleman have brought motions to quash service of summons, the court will address both motions to quash together before turning to the remaining motions individually.

MOTION TO QUASH SERVICE OF SUMMONS

Discussion

  1. Legal Standard

Code of Civil Procedure, section 474 provides in relevant part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly….”  (Code Civ. Proc., § 474.)  A plaintiff must substitute in the name of the Doe defendant when the plaintiff learns the individual’s name and the facts giving rise to liability.  (E.g., Optical Surplus v. Superior Court (1991) 228 Cal.App.3d 776, 783-784 [recognizing that a plaintiff’s earlier knowledge of the facts giving rise to his or her claims bars a plaintiff from naming an individual as a Doe defendant].)   

  1. Analysis

Coleman contends that service of summons and the doe amendment must be quashed as to him because Plaintiff knew of his identity and the facts giving rise to Plaintiff’s claims against him prior to the TAC being filed. (Coleman Motion to Quash, pp. 6-8.) Specifically, Coleman contends that because his deposition as a percipient witness was taken in February 13, 2019 and relates to the heart of Plaintiff’s alleged injuries, Plaintiff knew of facts giving rise to a claim against Coleman since at least that time and untimely named him as a doe defendant on March 3, 2020. (Id.) Similarly, London argues that Plaintiff knew of facts giving rise to a claim against him prior to the filing of the TAC because London’s deposition as a percipient witness was taken on March 18, 2019 and also allegedly goes to the heart of Plaintiff’s alleged injuries. (London Motion to Quash, pp. 5-7.)

In opposition to each motion, Plaintiff contends that he did not know of facts giving rise to a claim against either Coleman or London until after he received further responses from Live Nation to discovery he propounded following Coleman’s deposition. Plaintiff’s counsel, Pedram Zivari (“Zivari”) attests that after Coleman’s February 3, 2019 deposition, Plaintiff served special interrogatories on Live Nation to investigate Coleman’s testimony that Plaintiff kicked and punched multiple security guards. (Zivari Decl. ¶¶ 3-4.) Zivari attests that because Live Nation refused to respond, the parties went to an Informal Discovery Conference (“IDSC”) on May 13, 2019, after which the court ordered as follows:

“The Defendants are ORDERED to conduct an investigation, as part of their duty to obtain information under the Discovery Act, in order to identify the security guards who had physical contact with the Plaintiff (Special Interrogatory #44), who were punched by the Plaintiff (Special Interrogatory #45), who were kicked by the Plaintiff (Special Interrogatory #46) and who were restraining the Plaintiff by grabbing Plaintiff’s legs (Special Interrogatory #51)”

(Declaration of Pedram Zivari (“Zivari”) in Support of Opposition, ¶ 9, Exhibit D.) Further, Live Nation was ordered to provide supplemental responses to these interrogatories and provide the contact information for security guards who had contact with Plaintiff but who Live Nation could not contact.

Finally, Zivari attests that Live Nation served Plaintiff with the results of its May 13, 2019 court ordered investigation on July 8, 2019. (Id. at ¶ 9.) Zivari attests that because these responses “greatly contradicted” Coleman’s deposition testimony, Plaintiff was required to further investigate for the next several months before Plaintiff had sufficient facts to name Coleman and London as doe defendants on March 3, 2020. (Id. at ¶¶ 10-12.)

In reply, London and Coleman similarly contends Plaintiff knew or should have known of facts giving rise to his causes of action against them before filing the TAC because both testified to being at the Hollywood Palladium on October 13, 2016 and to handcuffing Plaintiff. (see Reply to London Motion to Quash, pp. 2-3.)

The court notes that the TAC alleges that while Plaintiff was alleging having a seizure on the floor, Hollywood Palladium’s staff, including “at least two off-duty Los Angeles Police Department officers,” attacked Plaintiff and attempted to restrain him. (TAC ¶ 19.) Thereafter, the TAC alleges that Hollywood Palladium staff, including “at least two off-duty Los Angeles Police Department officers,” restrained Plaintiff when he placed his hand in his pocket while disoriented immediately after his seizure. (TAC ¶¶ 21-22.) Further, when Plaintiff allegedly asked to leave the venue, Hollywood Palladium staff, “including at least two off-duty Los Angeles Police Department officers,” again restrained him, causing physical injuries. (TAC ¶¶ 24-28.) The court also notes that Plaintiff’s original Complaint includes no allegations of any involvement by off-duty Los Angeles Police Department officers” on October 13, 2016 in Plaintiff’s original description of the incident. Further, Plaintiff’s original Complaint only alleges in a conclusory fashion that doe defendants had duties to Plaintiff, and that Live Nation assisted in doe defendants falsely imprisoning Plaintiff. (Complaint ¶¶ 46, 48, 89.)

Thus, based on the above comparison between the TAC and the Complaint, the court finds that Plaintiff was truly ignorant of Coleman and London’s identities and the facts giving rise to claims against them at the time of the original Complaint. The original Complaint does not include any allegations that Plaintiff was assaulted by “off-duty Los Angeles Police Department officers,” or by anyone outside of Hollywood Palladium’s staff.

Having found that Plaintiff was truly ignorant of Coleman and London’s identities at the time of the original Complaint, the court will now analyze whether, after learning of facts giving rise to claims against Coleman and London, Plaintiff unreasonably delayed in filing doe amendments. (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8 [“unreasonable delay in filing an amendment after actually acquiring such knowledge can bar a plaintiff's resort to the fictitious name procedure.”].)

In analyzing whether Plaintiff’s doe amendments were untimely, the court first notes that Coleman’s deposition as taken on February 3, 2019, while London’s deposition was taken on March 18, 2019. Thus, the question is whether the subsequent approximately one-year delay between these dates and March 3, 2020 constitutes an unreasonable delay in filing the doe amendments.

As discussed above, Coleman and London both similarly ague that Plaintiff’s delay in filing the doe amendment was unreasonable because both testified to being present at the Hollywood Palladium on October 13, 2016 and being involved in Plaintiff’s arrest. In opposition, Plaintiff argues that the delay was not unreasonable because Plaintiff had to resolve conflicts between Coleman’s testimony and Live Nation’s responses regarding which of its staff and security guards were involved with Plaintiff’s arrest.

The court is persuaded by Plaintiff’s arguments. Plaintiff has alleged in the TAC that he suffered a seizure on October 13, 2016 and that various parties, including Hollywood Palladium staff, security guard(s) and off-duty Los Angeles Police Department officers were involved in wrongfully assaulting him and arresting him after his seizure. Thus, although Coleman and London testified to being involved in the arrest, it was not unreasonable, based on the TAC’s allegations, for Plaintiff to further investigate the facts surrounding Coleman and London’s involvement. The court is also persuaded that Plaintiff required additional time to investigate inconsistencies between Live Nation’s discovery responses and Coleman and London’s testimony.

Finally, Coleman and London have failed to demonstrate that they will be prejudiced by the doe amendments, as neither Coleman nor London’s motion to quash includes any showing that the doe amendment is prejudicial. In order to prevail on a motion to bar amendment under section 474 on grounds of unreasonable delay, a defendant “must show not only that the plaintiff was dilatory but also ‘that defendant suffered prejudice from any such delay.”  (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066 (A.N.))  

Although Coleman and London argue in reply that no showing of prejudice was required, their arguments are unavailing. For example, Coleman and London both cite to Hazel v. Hewlett (1988) 201 Cal.App.3d 1458 (Hazel) in support of their argument. However, the Court of Appeal in Hazel found that prejudice alone was not sufficient to defeat a doe amendment when Plaintiff was not truly ignorant of facts giving rise to a cause of action against the doe defendant. (Id. at 1466.) Based on the guidance from A.N. and similar authority, Coleman and London were also required to demonstrate prejudice from the timing of Plaintiff’s doe amendment in order to demonstrate that Plaintiff’s doe amendments should be quashed based on Plaintiff’s unreasonable delay in filing them.

Thus, Coleman and London’s motions to quash service are both denied. Plaintiff has demonstrated that his delay in filing doe amendments as to both Coleman and London was not unreasonable because Plaintiff reasonably needed to investigate Coleman and London’s individual liability, and Plaintiff could not have reasonably learned of the facts giving rise to claims against Coleman and London individually at the time of the original Complaint. Further, Coleman and London make no showing that they are prejudiced by the timing of Plaintiff’s doe amendment, and such a showing was required based on guidance from A.N. and other similar authority.

Conclusion

Coleman’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

London’s motion to quash service of summons and doe amendment is DENIED. Moving party is to give notice.

LONDON’S DEMURRER

Discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

London contends that each cause of action of the TAC fails to plead facts sufficient to state a cause of action against him because the doe amendment naming him as a defendant was improper and should be quashed. (Demurrer, 1-5.)

However, as discussed above, the court denied London’s motion to quash service of summons and the doe amendment because London has made no showing that he would be prejudiced by the doe amendment. Thus, because London does not demurrer to the TAC on any other basis, London’s demurrer is overruled.

Having overruled London’s demurrer on this basis, the court does not reach the remainder of the parties’ arguments.

Conclusion

London’s demurrer to the TAC is overruled. Moving party is to give notice.

LONDON’S MOTION TO STRIKE

Meet and Confer Requirement

London submits the declaration of his attorney, Geronimo Perez (“Perez”) to demonstrate that he has complied with his statutory meet and confer obligations pursuant to Code of Civil Procedure, section 435.5 prior to filing the instant motion. Perez attests that on July 30, 2020, he sent a meet and confer email to Plaintiff’s counsel which outlined the arguments in the instant motion and stating he was “available to meet and confer.” (Perez Decl. ¶ 3, Exhibit A.) However, and according to Perez, the parties did not reach an agreement. (Perez Decl. ¶ 4.)

Based on the Perez Declaration, it is unclear whether London has fulfilled his statutory meet and confer obligations prior to filing the instant motion. However, because failure to meet and confer is not grounds for the court to deny the motion, the court will analyze the remainder of the parties’ arguments.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Analysis

London moves to strike various allegations from the TAC in support of Plaintiff’s request for punitive damages from all Defendants, which London contends are inappropriately pled. (Notice of Motion, 2-4.)

“To support punitive damages, the complaint ... must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘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).)

To survive a motion to strike a request for punitive damages, “the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson, supra, 67 Cal.App.4th at p. 1255; accord, Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 ; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91.) However, a “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

London contends that the TAC’s allegations in support of Plaintiff’s claim for punitive damages must be stricken because the TAC fails to allege facts in support of a request for punitive damages with specificity. (Motion, 3-5.) In opposition, Plaintiff contends that the TAC is sufficiently pled as to London in order to request punitive damages in connection with the first, fifth, sixth and seventh causes of action. (Opposition, 6-7.) Further, Plaintiff notes that on April 8, 2020, he dismissed his claim for punitive damages against Live Nation. While Plaintiff argues he has pled sufficient facts for punitive damages on his first cause of action, for negligence, the first cause of action does not plead punitive damages, which are unavailable in a negligence cause of action.

Here, the TAC alleges upon information and belief that while Plaintiff was seizing on the floor, Hollywood Palladium’s staff, including “at least two off-duty Los Angeles Police Department officers,” attacked Plaintiff and attempted to restrain him. (TAC ¶ 19.) Thereafter, the TAC alleges that Hollywood Palladium staff, including “at least two off-duty Los Angeles Police Department officers,” restrained Plaintiff when he placed his hand in his pocket while disoriented immediately after his seizure. (TAC ¶¶ 21-22.) Finally, the TAC alleges that “Defendants, including DOES 1 through 20,” engaged in the “aforesaid despicable conduct with malice.” (TAC ¶¶ 41, 83, 99, 128, 143.)

The court agrees with Plaintiff that the TAC is sufficiently pled for purposes of a motion to strike. As Plaintiff correctly contends, a request for dismissal was filed on April 8, 2020 as to the TAC’s punitive damages claim against Live Nation. Thus, the court denies the portions of London’s motion which relate to allegations against Live Nation as the matter has already been resolved.

With regard to the TAC’s remaining allegations supporting a punitive damages claim against London, the court finds that the TAC is sufficiently pled because the TAC specifically describes involvement by “at least two off-duty Los Angeles Police Department officers” on October 13, 2016. Thereafter, the TAC alleges that defendants, including doe defendants, committed such actions against Plaintiff with malice. Plaintiff was not required to allege facts against London by name because London was later named as a doe defendant. For these reasons, the court denies the remainder of London’s motion.

Conclusion

London’s motion to strike is DENIED in its entirety. Moving party is to give notice.

COLEMAN’S DEMURRER

Discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

Coleman contends that each cause of action of the TAC fails to plead facts sufficient to state a cause of action against him because the doe amendment naming him as a defendant was improper and should be quashed. (Demurrer, 1-5.)

However, as discussed above, the court denied Coleman’s motion to quash service of summons and the doe amendment because Coleman has made no showing that he would be prejudiced by the doe amendment. Thus, because Coleman does not demurrer to the TAC on any other basis, Coleman’s demurrer is overruled.

Having overruled Coleman’s demurrer on this basis, the court does not reach the remainder of the parties’ arguments.

Conclusion

Coleman’s demurrer to the TAC is overruled. Moving party is to give notice.

COLEMAN AND LIVE NATION’S MOTION TO STRIKE

Meet and Confer Requirement

Coleman submits the declaration of his attorney, Geronimo Perez (“Perez”) to demonstrate that he has complied with his statutory meet and confer obligations pursuant to Code of Civil Procedure, section 435.5 prior to filing the instant motion. Perez attests that on May 22, 2020, he sent a meet and confer email to Plaintiff’s counsel which outlined the arguments in the instant motion and stating he was “available to meet and confer.” (Perez Decl. ¶ 3, Exhibit A.) However, and according to Perez, the parties did not reach an agreement. (Perez Decl. ¶ 4.)

Based on the Perez Declaration, it is unclear whether Coleman has fulfilled his statutory meet and confer obligations prior to filing the instant motion. However, because failure to meet and confer is not grounds for the court to deny the motion, the court will analyze the remainder of the parties’ arguments.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Analysis

Coleman and Live Nation move to strike various allegations from the TAC in support of Plaintiff’s request for punitive damages from all Defendants, which Coleman and Live Nation contend are inappropriately pled. (Notice of Motion, 2-4.)

“To support punitive damages, the complaint ... must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘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).)

To survive a motion to strike a request for punitive damages, “the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson, supra, 67 Cal.App.4th at p. 1255; accord, Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 ; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91.) However, a “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Coleman and Live Nation contend that the TAC’s allegations in support of Plaintiff’s claim for punitive damages must be stricken because the TAC fails to allege facts in support of a request for punitive damages with specificity. (Motion, 4-6.) In opposition, Plaintiff contends that the TAC is sufficiently pled as to London in order to request punitive damages in connection with the first, fifth, sixth and seventh causes of action. (Opposition, 6-8.) Further, Plaintiff notes that on April 8, 2020, he dismissed his claim for punitive damages against Live Nation. While Plaintiff argues he has pled sufficient facts for punitive damages on his first cause of action, for negligence, the first cause of action does not plead punitive damages, which are unavailable in a negligence cause of action..

Here, the TAC alleges upon information and belief that while Plaintiff was seizing on the floor, Hollywood Palladium’s staff, including “at least two off-duty Los Angeles Police Department officers,” attacked Plaintiff and attempted to restrain him. (TAC ¶ 19.) Thereafter, the TAC alleges that Hollywood Palladium staff, including “at least two off-duty Los Angeles Police Department officers,” restrained Plaintiff when he placed his hand in his pocket while disoriented immediately after his seizure. (TAC ¶¶ 21-22.) Finally, the TAC alleges that “Defendants, including DOES 1 through 20,” engaged in the “aforesaid despicable conduct with malice.” (TAC ¶¶ 41, 83, 99, 128, 143.)

The court agrees with Plaintiff that the TAC is sufficiently pled for purposes of a motion to strike. As Plaintiff correctly contends, a request for dismissal was filed on April 8, 2020 as to the TAC’s punitive damages claim against Live Nation. Thus, the court denies the portions of Coleman’s motion which relate to allegations against Live Nation as the matter has already been resolved.

With regard to the TAC’s remaining allegations supporting a punitive damages claim against Coleman, the court finds that the TAC is sufficiently pled because the TAC specifically describes involvement by “at least two off-duty Los Angeles Police Department officers” on October 13, 2016. Thereafter, the TAC alleges that defendants, including doe defendants, committed such actions against Plaintiff with malice. Plaintiff was not required to allege facts against Coleman by name because Coleman was later named as a doe defendant. For these reasons, the court denies the remainder of Coleman and Live Nation’s motion.

Conclusion

Coleman and Live Nation’s motion to strike is DENIED. its entirety. Moving party is to give notice..

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