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This case was last updated from Los Angeles County Superior Courts on 12/02/2019 at 08:04:05 (UTC).

IN THE MATTER OF: GINA R., ET AL.

Case Summary

On 07/25/2019 IN THE MATTER OF GINA R was filed as a Personal Injury - Other Personal Injury lawsuit. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6066

  • Filing Date:

    07/25/2019

  • 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

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiffs

R. GINA

B. PAUL

Defendants

DMS FACILITY SERVICES INC. A CALIFORNIA CORPORATION

LOEW'S HOTEL LLC. A NEW YORK CORPORATION

LOEWS HOLLYWOOD HOTEL LLC. A DELAWARE LIMITED LIABILITY COMPANY

LOEWS HH OPERATING COMPANY LLC A DELAWARE LIMITED LIABILITY COMPANY

DMS WINDOW CLEANING & METAL CARE SERVICES INC.

Attorney/Law Firm Details

Plaintiff Attorney

GANSEN CHRISTOPHER JOHN

Defendant Attorneys

NOLAN PAUL J

MERSEREAU JOHN

 

Court Documents

Proof of Service by Mail

11/14/2019: Proof of Service by Mail

Declaration - DECLARATION OF JOHN O. MERSEREAU IN SUPPORT OF DMS WINDOW CLEANING & METAL SERVICES, INC.'S DEMURRER TO PLAINTIFFS' COMPLAINT

10/31/2019: Declaration - DECLARATION OF JOHN O. MERSEREAU IN SUPPORT OF DMS WINDOW CLEANING & METAL SERVICES, INC.'S DEMURRER TO PLAINTIFFS' COMPLAINT

Declaration - DECLARATION DECLARATION OF JOHN O. MERSEREAU IN SUPPORT OF DMS WINDOW CLEANING & METAL CARE SERVICES, INC.'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT

10/31/2019: Declaration - DECLARATION DECLARATION OF JOHN O. MERSEREAU IN SUPPORT OF DMS WINDOW CLEANING & METAL CARE SERVICES, INC.'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT

Memorandum of Points & Authorities

10/31/2019: Memorandum of Points & Authorities

Notice of Motion - NOTICE OF MOTION DMS WINDOW CLEANING & METAL CARE SERVICES, INCS NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS COMPLAINT

10/31/2019: Notice of Motion - NOTICE OF MOTION DMS WINDOW CLEANING & METAL CARE SERVICES, INCS NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS COMPLAINT

Proof of Service by Mail

10/31/2019: Proof of Service by Mail

Proof of Service by Mail

10/31/2019: Proof of Service by Mail

Memorandum of Points & Authorities

10/31/2019: Memorandum of Points & Authorities

Demurrer - with Motion to Strike (CCP 430.10)

10/31/2019: Demurrer - with Motion to Strike (CCP 430.10)

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

10/28/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

10/17/2019: Case Management Statement

Case Management Statement

10/22/2019: Case Management Statement

Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PORTIONS OF COMPLAINT

10/7/2019: Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PORTIONS OF COMPLAINT

Amendment to Complaint (Fictitious/Incorrect Name)

8/20/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Notice of Case Management Conference

7/31/2019: Notice of Case Management Conference

Summons - SUMMONS ON COMPLAINT

7/25/2019: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

7/25/2019: Notice of Case Assignment - Unlimited Civil Case

Complaint

7/25/2019: Complaint

10 More Documents Available

 

Docket Entries

  • 01/08/2020
  • Hearing01/08/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 01/08/2020
  • Hearing01/08/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 01/08/2020
  • Hearing01/08/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: No Names Being Used by Parties/Keep Using Initials

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  • 01/08/2020
  • Hearing01/08/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 11/18/2019
  • DocketStipulation and Order (Stipulation and [Proposed] Order Re Hearing Dates); Filed by DMS Window Cleaning & Metal Care Services, Inc. (Defendant)

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  • 11/15/2019
  • DocketRequest for Refund / Order; Filed by DMS Window Cleaning & Metal Care Services, Inc. (Defendant)

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  • 11/14/2019
  • DocketProof of Service by Mail; Filed by DMS Window Cleaning & Metal Care Services, Inc. (Defendant)

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  • 10/31/2019
  • DocketProof of Service by Mail; Filed by DMS Window Cleaning & Metal Care Services, Inc. (Defendant)

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  • 10/31/2019
  • DocketDeclaration (Declaration of John O. Mersereau in Support of DMS Window Cleaning & Metal Care Services, Inc.'s Motion to Strike Plaintiffs' Complaint); Filed by DMS Window Cleaning & Metal Care Services, Inc. (Defendant)

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  • 10/31/2019
  • DocketMemorandum of Points & Authorities; Filed by DMS Window Cleaning & Metal Care Services, Inc. (Defendant)

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7 More Docket Entries
  • 10/22/2019
  • DocketCase Management Statement; Filed by Gina R. (Plaintiff); Paul B. (Plaintiff)

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  • 10/17/2019
  • DocketCase Management Statement; Filed by LOEWS HOLLYWOOD HOTEL LLC., A Delaware Limited Liability Company (Defendant); LOEWS HH OPERATING COMPANY LLC, a Delaware Limited Liability Company (Defendant)

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  • 10/07/2019
  • DocketDemurrer - with Motion to Strike (CCP 430.10) (to Complaint); Filed by LOEWS HOLLYWOOD HOTEL LLC., A Delaware Limited Liability Company (Defendant); LOEWS HH OPERATING COMPANY LLC, a Delaware Limited Liability Company (Defendant)

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  • 10/07/2019
  • DocketMotion to Strike (not initial pleading) (Portions of Complaint); Filed by LOEWS HOLLYWOOD HOTEL LLC., A Delaware Limited Liability Company (Defendant); LOEWS HH OPERATING COMPANY LLC, a Delaware Limited Liability Company (Defendant)

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  • 08/20/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Gina R. (Plaintiff); Paul B. (Plaintiff)

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  • 07/31/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/25/2019
  • DocketSummons (on Complaint); Filed by Gina R. (Plaintiff)

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  • 07/25/2019
  • DocketCivil Case Cover Sheet; Filed by Gina R. (Plaintiff); Paul B. (Plaintiff)

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  • 07/25/2019
  • DocketComplaint; Filed by Gina R. (Plaintiff); Paul B. (Plaintiff)

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  • 07/25/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 19STCV26066    Hearing Date: February 16, 2021    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 16, 2021 TRIAL DATE: April 26, 2021

CASE: Gina Rasmussen, et al. v. Loews Hollywood Hotel LLC, et al.

 

CASE NO.: 19STCV26066

MOTION TO CONTINUE MEDIATION DEADLINE, TRIAL AND ALL RELATED DATES AND DEADLINES

MOVING PARTY: Defendant DMS Window Cleaning & Metal Care Services, Inc.

RESPONDING PARTY(S): No opposition on eCourt as of February 10, 2021.

PROOF OF SERVICE:

CASE HISTORY:

Operating Company LLC.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that they were engaged in an intimate sexual act in their fifteenth-floor hotel room at Loews Hollywood Hotel with the window blinds open, only to find a window washer staring at them pruriently. They allege that the hotel failed to follow its policy to notify guests when window washing activities will take place at their floor level. They allege causes of action for intrusion of privacy, negligence, negligent hiring/retention/supervision, negligent and intentional infliction of emotional distress, and a violation of their civil rights.

Defendant/Cross-Complainant/Cross-Defendant DMS Window Cleaning & Metal Care Services, Inc. moves to continue the mediation deadline, trial, and all related dates and deadlines.

TENTATIVE RULING:

Defendant DMS Window Cleaning & Metal Care Services, Inc.’s motion to continue the mediation deadline, trial, and all related dates and deadlines is GRANTED. The April 26, 2021 trial date is advanced to this date and continued to November 8, 2021. The April 20, 2021 final status conference is advanced to this date and continued to October 26, 2021. The post-mediation status conference is advanced to this date from March 12, 2021 and continued to September 17, 2021. All cutoff dates are to be calculated in reference to the new trial date.

DISCUSSION:

Motion to Continue Mediation Deadline, Trial, and Related Dates

Defendant moves to continue the mediation deadline, trial, and all related dates “to permit discovery to be completed” and “to allow enough time to get the case into proper posture for settlement negotiations.” (Motion, at p. 2.) Defendant represents that all parties have stipulated to the continuance except Plaintiffs. (Ibid.)

“To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain.” (CRC 3.1332(a).) Therefore, “continuances of trials are disfavored.” (CRC 3.1332(c).)

In general, needing time to “complete discovery and prepare the case for mediation or trial” (Motion, at p. 2) would not constitute good cause under CRC 3.1332(c). However, a party’s “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts” is among the circumstances that may indicate good cause. (CRC 3.1332(c)(6).) Here, the Declaration of Attorney John O. Mersereau indicates that Defendants “have made diligent efforts to move this case forward by subpoenaing records, propounding written discovery, and taking Plaintiffs’ depositions.” (Mersereau Decl. ¶ 7.) Despite this diligence, however, “discovery has been delayed due to the ongoing COVID-19 pandemic and lengthy motion practice at the outset of the case.” (Ibid.) Although the parties can presumably proceed remotely with discovery and other tasks going forward, the Court acknowledges that the pandemic would have caused delays in its earliest stages and created added complications as the parties attempted to move this case forward. Accordingly – and particularly in light of the fact that Plaintiffs did not object to Defendants’ characterization of their diligence – the Court finds that Defendants have shown an excused inability to obtain necessary discovery despite their diligent efforts.

In addition, in ruling on a motion for continuance of the trial date, other factors include, as relevant to this motion:

· Whether there was any previous continuance, extension of time, or delay of trial due to any party. The trial has not been previously continued.

· The length of the continuance requested. Six months.

· The availability of alternative means to address the problem that gave rise to the motion or application for a continuance. There is no feasible means to address the problem that would give the parties additional time to complete their discovery and participate in mediation.

· The prejudice that parties or witnesses will suffer as a result of the continuance. There does not appear to be any prejudice that would result from the continuance.

· Whether all parties have stipulated to a continuance. All parties that have appeared stipulated to this motion other than the Plaintiffs, who did not file any opposition.

· Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance. The interests of justice would be served by allowing the parties to complete discovery and participate in mediation.

· Any other fact or circumstance relevant to the fair determination of the motion or application. The moving party indicates that the Covid-19 pandemic contributed to the delays in the parties’ motion practice, discovery, and the general forward momentum of the case.

(CRC 3.1332(d).)

Conclusion

Taken together, the foregoing factors do not weigh against a finding of good cause for continuance of the trial date. Thus, the motion to continue the trial date is GRANTED.

The April 26, 2021 trial date is advanced to this date and continued to November 8, 2021. The April 20, 2021 final status conference is advanced to this date and continued to October 26, 2021. The post-mediation status conference is advanced to this date from March 12, 2021 and continued to September 17, 2021. All cutoff dates are to be calculated in reference to the new trial date.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 16, 2021 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: 19STCV26066    Hearing Date: July 24, 2020    Dept: 47

Gina Rasmussen, et al. v. Loews Hollywood Hotel LLC, et al.

 

GIVEN THE RECENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

(1) DEMURRER TO FIRST AMENDED COMPLAINT;

(2) MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT;

(3) DEMURRER TO FIRST AMENDED COMPLAINT;

(4) MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY: (1)-(2) Defendants Loews Hollywood Hotel, LLC and Loews HH Operating Company, LLC; (3)-(4) Defendant DMS Window Cleaning & Metal Care Services, Inc.

RESPONDING PARTY(S): (1)-(4) Plaintiffs Gina Rasmussen and Paul Breisch

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that they were engaged in an intimate sexual act in their fifteenth-floor hotel room at Loews Hollywood Hotel with the window blinds open, only to find a window washer staring at them pruriently. They allege that the hotel failed to follow its policy to notify guests when window washing activities will take place at their floor level. They allege causes of action for intrusion of privacy, negligence, negligent hiring/retention/supervision, negligent and intentional infliction of emotional distress, and a violation of their civil rights.

Defendants Loews Hollywood Hotel LLC, Loews HH Operating Company LLC, and DMS Window Cleaning & Metal Care Services, Inc. demur to the first amended complaint and move to strike portions of it.

TENTATIVE RULING:

Defendants Loews Hollywood Hotel LLC, Loews HH Operating Company LLC’s demurrer to the first amended complaint is SUSTAINED as to the first, third, and fifth causes of action. Defendants’ demurrer is OVERRULED as to the second and fourth causes of action.

Defendants’ motion to strike is GRANTED in its entirety, as to the prayer for punitive damages and related allegations in ¶¶ 45, 69, 77, and 83.

Defendant DMS Window Cleaning & Metal Care Services, Inc.’s demurrer to the first amended complaint is OVERRULED.

Defendant’s motion to strike is GRANTED in its entirety, as to the prayer for punitive damages and supporting allegations in ¶¶ 45, 69, 77, 79, 81, 83, and 84; the phrase “having endured an incident that would shock any reasonable person’s conscience” in ¶ 33, and the prayer for attorney’s fees and related allegations in ¶¶ 45, 77, and 83. Plaintiffs’ allegations do not indicate any basis for attorney’s fees, and Plaintiffs did not even attempt to argue that the prayer for attorney’s fees is proper, having submitted the identical opposition that they did to the previous demurrer and simply substituted “Villanueva” for “Tom DOE” throughout.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing as to each of the sustained demurrers and granted motions to strike. Otherwise, no leave to amend will be given. If leave is granted, this will be Plaintiffs’ last opportunity to amend these causes of action.

DISCUSSION:

Both Demurrers Fail on Uncertainty Grounds

All Defendants raise “uncertainty” as one of the grounds for their demurrers as to every cause of action they challenge.

Demurrers for uncertainty are disfavored, because discovery can be used for clarification, and apply only where defendants cannot reasonably determine what issues or claims are stated. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. If the 1AC is not so incomprehensible that Defendants cannot reasonably respond – and it is not – then the 1AC is not uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848 n.3.) Many of the operative facts here would also be within the Defendants’ knowledge, and a “demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendants’ knowledge.” (Chen, supra, 33 Cal.App.5th at 822.) A failure to specify what specific aspects of a cause of action are uncertain is another basis on which to overrule the demurrer. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328.) Here, none of the demurring defendants have pointed to any specific aspects of the causes of action that they claim are uncertain.

Accordingly, the demurrers are OVERRULED on the ground of uncertainty. To the extent that any of the demurrers are sustained below, they are sustained on the ground that those causes of action fail to state facts sufficient to constitute a cause of action under CCP § 430.10(e).

Demurrer – Loews Hollywood Hotel LLC and Loews HH Operating Company LLC

Meet and Confer

The Declaration of Attorney Christina Loni reflects that the statutory meet-and-confer requirement of CCP § 430.41 was satisfied. The Court also notes that if, as Defendant’s counsel declares, Plaintiffs’ counsel stated that “they would not amend the complaint no matter how much talking the parties did,” that stance does not comply with the spirit of the meet-and-confer requirement.

Analysis

First Cause of Action (Intrusion of Privacy)

Defendants demur to the first cause of action for intrusion of privacy on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person.

(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.)

The Court notes that this demurrer is practically identical, word-for-word, to Defendant’s previous demurrer. One would think Defendant would omit the arguments that were already rejected and use that precious space for new arguments. Given that it did not, the Court will repeat its rejection of those arguments verbatim from the previous ruling:

As to the first element, intentional intrusion, Defendants appear to concede that this element is met, given that its argument focuses only on the “offensiveness” element. Defendants do, however, note that the actions of the window washer (“Tom DOE” [now referred to as “Defendant Villanueva”]) were “accidental” and that no facts are alleged to show that he “intentionally set up the up [sic] situation in which the alleged intrusion occurred,” which suggests they do not believe that the intrusion was intentional. (Demurrer, at p. 4 [Now, Demurrer, at p. 10 – unbelievably with the same error still in the text, even after the Court pointed it out in the previous ruling!].) The “intentional” action that is alleged here, however, is intentionally watching Plaintiffs, as opposed to averting his eyes or, as Plaintiffs suggest, moving on to another window, alerting them that he was there, or calling a supervisor. (Complaint ¶ 31 [noting that he “intentionally intruded in Plaintiffs [sic] private hotel window by lingering in the window, and intentionally staying in place to observe Plaintiffs for a meaningful period of time”].) Thus, the “intent” part of the intentional intrusion element is sufficiently alleged.

Likewise, Plaintiffs sufficiently allege that the intrusion was into a place where they had a reasonable expectation of privacy: their private hotel room on the fifteenth floor of the hotel. (Complaint ¶ 30.) In Fourth Amendment jurisprudence, for example, it is well settled that we have a reasonable expectation of privacy in hotel rooms. (Jacobs v. Superior Court (1973) 36 Cal.App.3d 489, 495 & n. 8 [explaining that “man requires some sanctuary in which his freedom to escape the intrusions of society is all but absolute” and that “[h]omes and offices clearly fall within this category of maximum protection, . . . as to hotel rooms”].)

As to the second element – that the intrusion must be “highly offensive to a reasonable person” – relevant factors include: “(1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder's motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded.” (Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 377.) This element “essentially involves a ‘policy’ determination as to whether the alleged intrusion is ‘highly offensive’ under the particular circumstances.” (Hernandez, supra, 47 Cal.4th at 287.) “California tort law provides no bright line on [‘offensiveness’]; each case must be taken on its facts.” (Ibid. (citation omitted).)

Defendants argue that the degree of intrusion “was minimal and accidental” and that Tom DOE “happened to be at the wrong place at the wrong time in a situation that was out of control.” (Demurrer, at p. 4 [now Demurrer, at p. 10].) It may be that Defendants will be able to prove these facts at trial, but they cannot be the basis for the Court’s decision on demurrer. Here, Plaintiffs allege that Tom DOE “intentionally” lingered in the window “for a meaningful period of time,” not that he accidentally intruded for a minimal amount of time. (Complaint ¶ 31.) They also allege that he was “intensely staring at the couple with obvious, prurient, pleasure,” that the window washing platform was “not moving at all, nor were its support cables, suggesting that it had been in place for a lengthy period of time,” that he “made no effort to avert his stare . . . nor . . . any effort to move the platform away from the window,” that he “displayed a grin,” and that it “appeared that he was also physically aroused.” (Complaint ¶¶ 20-23.)

Whether these circumstances would be “highly offensive to a reasonable person” cannot be determined as a matter of law. “While what is ‘highly offensive to a reasonable person’ suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of ‘offensiveness’ which must be made by the court in discerning the existence of a cause of action for intrusion.” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483.) For purposes of this preliminary determination, “degree” is an important factor; “a ‘party-crasher’ might not, under some circumstances, be regarded as a major tortfeasor, while an intruder upon highly personal, intimate activities or events might very well be.” (Ibid.) Here, Plaintiffs have alleged a degree of offensiveness that is sufficient at the pleading stage.

(Ruling on Demurrer to Complaint, 1/8/20, at pp. 3-4.)

Defendants also argue that, even if Plaintiffs sufficiently alleged the elements of intrusion of privacy, they cannot be vicariously liable for Villanueva’s actions. Abandoning their argument that Villanueva was merely in the “wrong place at the wrong time,” Defendants argue that they cannot be liable if Villanueva acted with “personal malice” or otherwise substantially deviated from his employment duties for personal purposes. (Demurrer, at p. 5 previously; Demurrer, at p. 11 now.) Defendants also argue that they cannot be vicariously liable because the Complaint fails to allege how they ratified Villanueva’s actions. This is the basis on which the previous demurrer was sustained and is where Defendants should have focused their attention, if Plaintiffs still have not alleged this sufficiently.

A “principal may be liable for the wrongful conduct of its agent . . . in one of three ways: (1) if the “ ‘principal directly authorizes . . . [the tort or] crime to be committed’ ” . . . ; (2) if the agent commits the tort “in the scope of his employment and in performing service on behalf of the principal” . . . , “regardless of whether the wrong is authorized or ratified by [the principal]” . . . ; or (3) if the principal ratifies its agent’s conduct “after the fact by . . . voluntar[ily] elect[ing] to adopt the [agent’s] conduct . . . as its own.” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 (citations omitted).)

Here, Plaintiffs allege the following regarding vicarious liability in the 1AC within the first cause of action:

42. Defendants Loews and/or DMS Window Cleaning and DOES 2-100 are vicariously liable for all of the harm caused by VILLANUEVA’s conduct. . . .

43. As alleged above, Loews and DMS Window Cleaning were also negligent in the hiring, training and/or retention of VILLANUEVA as it relates to hotel guest privacy, which makes Defendant Loews and/or DMS liable for damages under this cause of action.

44. VILLANUEVA is and at all times relevant was, an employee of DMS Window Cleaning and an agent of Loews and DOES 2-100. In doing the things herein described, VILLANUEVA, although he may or may not have been authorized to do so, purported to act on behalf of Defendants and committed the wrongful conduct while performing his duties as an employee/agent of Defendants. Defendants learned of and approved the herein described wrongful conduct of VILLANUEVA after it occurred, failed to properly assess VILLANUEVA’s background, failed to train VILLANUEVA and retained him after the wrongful acts occurred. Defendants failed to investigate and respond to their knowledge that VILLANUEVA committed the wrongful conduct herein described, and failed to terminate him as well.

45. Alternatively, VILLANUEVA was acting within the course and scope of his agency/employment with Defendants when he committed the wrongful conduct herein described. . . .

(1AC ¶¶ 42-45, bold emphasis added.) The “alleged above” referred to in Paragraph 43 does not, however, allege that Loews “and” DMS were negligent in the hiring, training, and/or retention of Villanueva. Rather, Plaintiffs’ general allegation is that Loews “and/or” DMS were negligent in hiring, training, and supervising Villanueva. (¶ 25.) If read as Loews “or” DMS, which is the whole point of a phrase like “and/or,” there is no such allegation against Loews.

The bolded language reflects the additions to these allegations after the demurrer was previously sustained. These allegations continue to be insufficient as against the Loews Defendants. Plaintiffs do not allege that these Defendants directly hired Villanueva, and therefore these Defendants would not be the entities that would terminate him for wrongdoing or “retain[] him after the wrongful acts occurred.” (1AC ¶ 44.) Plaintiffs might have, for example, ratified Villanueva’s conduct by giving his employer, DMS, a bonus and asking it to continue to send Villanueva to the hotel to perform window washing services, or even by taking no action to ensure that DMS would not send Villanueva back to the hotel, but Plaintiffs have not alleged anything regarding these Defendants’ actions toward DMS in this cause of action. Nor have they alleged any basis on which these Defendants would have investigated Villanueva’s background themselves or would have known his identity before he arrived to wash windows. Moreover, the additions to this cause of action all relate to actions that DMS would have taken or not taken, not Loews.

This is the identical analysis that the Court made in the context of the original demurrer, but Plaintiffs made no attempt to address these points. Indeed, like Defendants, Plaintiffs submitted a memorandum of points and authorities that is identical to its previous memorandum in opposition to the demurrer to the complaint as to this cause of action. Plaintiffs even left in their arguments regarding a cause of action that no longer exists in the 1AC. What is it they say about repeating the same thing over and over and expecting different results? That’s right – it’s the definition of “insanity.”[1]

Accordingly, the demurrer to the first cause of action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given. If leave is granted, this will be Plaintiffs’ last opportunity to amend this cause of action.

Second Cause of Action (Negligence)

Defendants did not demur to this cause of action in the complaint, and they could have raised the same arguments about this cause of action then that they raise now. Indeed, the particular allegation they focus on – that “Plaintiffs allege that the Loews Defendants should have taken action to prevent the wrongful acts of its agents, such as DMS and Defendant Villanueva and that their failure to do so resulted in Plaintiffs’ injuries” – was already alleged in the complaint. (Complaint ¶¶ 43, 44.) Plaintiffs made some changes to this cause of action, but nothing that would have prompted Defendants’ arguments here; those are based on Plaintiffs’ original allegations in this cause of action.

Once a demurrer is sustained and the complaint amended, no subsequent demurrer can be brought on grounds that could have been raised by demurrer to the earlier version of the complaint. (CCP § 430.41(b).) Although Plaintiffs should have raised that argument in their opposition and not ignored this cause of action completely, they were entirely correct to do so, given that Defendants improperly attempted to demur to this cause of action.

The demurrer is OVERRULED as to the second cause of action.

Third Cause of Action (Negligent Hiring, Retention and Supervision)

Defendants demur to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain (CCP § 430.10(e), (f).)

Plaintiffs’ allegations regarding Defendants’ conduct are the same in connection with this cause of action as in connection with the first cause of action, and they are deficient for the same reasons, as they were in connection with the previous demurrer. Plaintiffs do not allege facts suggesting that these Defendants (the Loews Defendants) negligently hired, retained, or supervised Villanueva.

Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are “limits to the generality with which a plaintiff is permitted to state his cause of action, and … the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant's negligence has caused him injury.”

(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Plaintiffs have not alleged particular acts or omissions on the part of these Defendants that would support this cause of action.

Accordingly, the demurrer to the third cause of action for negligent hiring, retention and supervision is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given. If leave is granted, this will be Plaintiffs’ last opportunity to amend this cause of action succcessfully.

Fourth Cause of Action (Negligent Infliction of Emotional Distress)

As with the second cause of action, here, too, Plaintiffs did not make any substantive changes, yet Defendants did not demur to this cause of action previously and improperly demur now on a basis that they could have raised in the previous demurrer.

The demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action (Intentional Infliction of Emotional Distress)

Defendants demur to the fifth cause of action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action and that it is uncertain. (CCP § 430.10(e), (f).)

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.) Defendants’ conduct must be “directed primarily” at Plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.)

Defendants are correct that Plaintiffs’ allegations fall short of these requirements. Plaintiffs do not allege any extreme and outrageous conduct on the part of these Defendants. In addition, as discussed in connection with the first cause of action, Plaintiffs have not sufficiently alleged that these Defendants ratified Villaneueva’s conduct for purposes of vicarious liability. And, again, both parties continued to make the same arguments they made as to the complaint, only in this case, Plaintiffs would be expected to point to the ways in which they had amended this cause of action to address the Court’s problems with the earlier version. They have not done so.

As such, the demurrer to the fifth cause of action for intentional infliction of emotional distress is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. If they do not, no leave to amend will be given. If leave is granted, this will be Plaintiffs’ last opportunity to amend this cause of action.

Motion To Strike: Loews Hollywood Hotel, LLC and Loews HH Operating Company, LLC

Meet and Confer

The Declaration of Attorney Christina Loni reflects that the statutory meet-and-confer requirement of CCP § 435.5 was satisfied. Again, Plaintiffs’ counsel is admonished to participate meaningfully in the process.

Analysis

Defendants move to strike Plaintiffs’ prayer for punitive damages and related allegations. Defendants are correct that Plaintiff’s allegations as to these Defendant do not rise to the level of “oppression, fraud, or malice” necessary for punitive damages.

“Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. § 3294(c)(2).) “Fraud” is “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.” (Id. § 3294(c)(3).)

Plaintiffs’ allegations that “Defendants and each of them, in doing the things alleged, acted willfully, maliciously, oppressively, fraudulently, and despicably” are wholly conclusory. Nowhere do Plaintiffs allege any conduct on the part of these Defendants that rises to that level. Plaintiffs do not allege, for example, that the Loews Defendants had received other complaints about the same conduct by Villanueva or otherwise acted with any intent to injure Plaintiffs or with conscious disregard of their rights.

Accordingly, the motion is GRANTED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Demurrer: DMS Window Cleaning & Metal Care Services, Inc.

Meet and Confer

The Declaration of Attorney John O. Mersereau reflects that the statutory meet-and-confer requirement of CCP § 430.41 was satisfied.

Analysis

First Cause of Action (Intrusion of Privacy)

Defendant demurs to the first cause of action for intrusion of privacy on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person.

(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.)

Like the Loews Defendants, DMS repeats arguments that this Court already rejected. Those arguments continue to be without merit.

As to the one basis on which the previous demurrer was successful, Defendant argues that Plaintiffs’ allegations as to their vicarious liability are still insufficient.

A “principal may be liable for the wrongful conduct of its agent . . . in one of three ways: (1) if the “ ‘principal directly authorizes . . . [the tort or] crime to be committed’ ” . . . ; (2) if the agent commits the tort “in the scope of his employment and in performing service on behalf of the principal” . . . , “regardless of whether the wrong is authorized or ratified by [the principal]” . . . ; or (3) if the principal ratifies its agent’s conduct “after the fact by . . . voluntar[ily] elect[ing] to adopt the [agent’s] conduct . . . as its own.” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 (citations omitted).)

Here, Plaintiffs now allege the following regarding vicarious liability in the first cause of action:

42. Defendants Loews and/or DMS Window Cleaning and DOES 2-100 are vicariously liable for all of the harm caused by VILLANUEVA’s conduct. . . .

43. As alleged above, Loews and DMS Window Cleaning were also negligent in the hiring, training and/or retention of VILLANUEVA as it relates to hotel guest privacy, which makes Defendant Loews and/or DMS liable for damages under this cause of action.

44. VILLANUEVA is and at all times relevant was, an employee of DMS Window Cleaning and an agent of Loews and DOES 2-100. In doing the things herein described, VILLANUEVA, although he may or may not have been authorized to do so, purported to act on behalf of Defendants and committed the wrongful conduct while performing his duties as an employee/agent of Defendants. Defendants learned of and approved the herein described wrongful conduct of VILLANUEVA after it occurred, failed to properly assess VILLANUEVA’s background, failed to train VILLANUEVA and retained him after the wrongful acts occurred. Defendants failed to investigate and respond to their knowledge that VILLANUEVA committed the wrongful conduct herein described, and failed to terminate him as well.

45. Alternatively, VILLANUEVA was acting within the course and scope of his agency/employment with Defendants when he committed the wrongful conduct herein described. . . .

(1AC ¶¶ 42-45, bold emphasis added.)

The bolded language reflects the additions to these allegations after the demurrer was previously sustained. These allegations are now sufficient as to DMS. Plaintiffs allege that Villanueva is an employee of DMS and that DMS “learned of and approved the herein described wrongful conduct . . . and retained him after the wrongful acts occurred.” (¶ 44.) These allegations are sufficient as against DMS.

Accordingly, the demurrer to the first cause of action is OVERRULED.

Third Cause of Action (Negligent Hiring, Retention and Supervision)

Defendant demurs to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain (CCP § 430.10(e), (f).)

Plaintiffs’ allegations regarding Defendants’ conduct are the same in connection with this cause of action as in connection with the first cause of action, and they are sufficient for the same reasons.

Accordingly, the demurrer to the third cause of action is OVERRULED.

Fifth Cause of Action (Intentional Infliction of Emotional Distress)

Defendant demurs to the fifth cause of action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action and that it is uncertain. (CCP § 430.10(e), (f).)

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-875.) Defendants’ conduct must be “directed primarily” at Plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.)

Plaintiffs now sufficiently allege vicarious liability against this Defendant as discussed above, and therefore, as long as the 1AC adequately pleads intentional infliction of emotional distress against Villanueva, this Defendant can be held liable for it. (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1389 [“Accordingly, as long as the Complaint adequately pleads the elements of negligence, negligent infliction of emotional distress and intentional infliction of emotional distress against [State employees] Koen and Sanders, it also adequately pleads the vicarious liability of the State for those causes of action.”].)

Here, Plaintiffs allege that Villanueva “remained in the window and cravenly enjoyed watching Plaintiffs in the midst of a private, intimate, sexual act” and did not “remove himself from the situation at the first opportunity he had.” (¶ 79.) In the context of a voyeuristic culture in which privacy is in decline – one in which voyeuristic shows like “Big Brother” and “The Bachelor” have had many years of ratings success – it may be difficult to prove this conduct is so extreme that it exceeds the boundaries of what is “usually tolerated in a civilized community.” (Catsouras, supra, 181 Cal.App.4th at 875.) But what Plaintiffs might be able to prove is not at issue at the demurrer stage. For now, the Court cannot say, as a matter of law, that this conduct was not outrageous. Indeed, [w]hether conduct is outrageous is usually a question of fact.” (Ragland v. U.S. Bank National Ass’n (2012) 209 Cal.App.4th 182, 204.) This is not one of those circumstances at the pleading stage in which the Court can say definitively that Villanueva’s conduct was not outrageous as a matter of law.

As such, the demurrer to the fifth cause of action for intentional infliction of emotional distress is OVERRULED.

Motion to Strike: DMS Window Cleaning & Metal Care Services, Inc.

Meet and Confer

The Declaration of Attorney John O. Mersereau reflects that the statutory meet-and-confer requirement of CCP § 435.5 was satisfied.

Analysis

Defendant moves to strike Plaintiffs’ prayer for punitive damages and related allegations, as well as their prayer for attorney’s fees.

Defendant is correct that Plaintiff’s allegations as to this Defendant do not rise to the level of “oppression, fraud, or malice” necessary for punitive damages.

“Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. § 3294(c)(2).) “Fraud” is “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.” (Id. § 3294(c)(3).)

Plaintiffs have not alleged any conduct on the part of DMS that was undertaken with the intent to cause them harm. Nor have Plaintiffs met the requirements to allege punitive damages against a corporate employer. To meet those requirements, any alleged “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294(b).) Plaintiffs have made no such allegations as to any officer, director, or managing agent of DMS.

Accordingly, the motion is GRANTED as to the prayer for punitive damages and supporting allegations in ¶¶ 45, 69, 77, 79, 81, 83, and 84.

The motion is GRANTED as to “having endured an incident that would shock any reasonable person’s conscience” in ¶ 33. Plaintiffs may allege that this incident shocked their conscience, but they cannot allege that it “would shock any reasonable person’s conscience” as a matter of law. Conclusory allegations will not be stricken where they are supported by other factual allegations in a pleading. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Here, however, Plaintiffs’ allegations of outrageousness do not support the conclusion, as a matter of law, that this incident would shock any reasonable person’s conscience, as discussed in connection with their cause of action for intentional infliction of emotional distress.

The motion is also GRANTED as to the prayer for attorney’s fees and related allegations in ¶¶ 45, 77, and 83. Plaintiffs’ allegations do not indicate any basis for attorney’s fees, and Plaintiffs did not even attempt to argue that the prayer for attorney’s fees is proper, having submitted the identical opposition that they did to the previous demurrer and simply substituted “Villanueva” for “Tom DOE” throughout.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: July 24, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] While typically attributed to Albert Einstein, this quote has been traced to mystery novelist Rita Mae Brown.

Case Number: 19STCV26066    Hearing Date: January 08, 2020    Dept: 47

Gina R., et al. v. Loews Hollywood Hotel LLC, et al.

  

(1) DEMURRER TO COMPLAINT;

(2) MOTION TO STRIKE PORTIONS OF COMPLAINT;

(3) DEMURRER TO COMPLAINT;

(4) MOTION TO STRIKE PORTIONS OF COMPLAINT

MOVING PARTY: (1)-(2) Defendants Loews Hollywood Hotel, LLC and Loews HH Operating Company, LLC; (3)-(4) Defendant DMS Window Cleaning & Metal Care Services, Inc.

RESPONDING PARTY(S): (1)-(4) Plaintiffs Gina R. and Paul B.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that they were engaged in an intimate sexual act in their fifteenth-floor hotel room at Loews Hollywood Hotel with the window blinds open, only to find a window washer staring at them pruriently. They allege that the hotel failed to follow its policy to notify guests when window washing activities will take place at their floor level. They allege causes of action for intrusion of privacy, negligence, negligent hiring/retention/supervision, negligent and intentional infliction of emotional distress, and a violation of their civil rights.

Defendants Loews Hollywood Hotel LLC, Loews HH Operating Company LLC, and DMS Window Cleaning & Metal Care Services, Inc. demur to the complaint and move to strike portions of it.

TENTATIVE RULING:

Defendants Loews Hollywood Hotel LLC, Loews HH Operating Company LLC’s demurrer to the complaint is SUSTAINED as to the first, third, fifth, and sixth causes of action.

Assuming that Defendants Loews Hollywood Hotel LLC and Loews HH Operating Company LLC can specifically list and identify, at or before the hearing, the paragraphs, parts of paragraphs, or other parts of the complaint that should be stricken as required by CRC 3.1322, the motion will be GRANTED.

Defendant DMS Window Cleaning & Metal Care Services, Inc.’s demurrer to the complaint is SUSTAINED as to the first, third, fifth, and sixth causes of action.

Assuming that Defendant DMS Window Cleaning & Metal Care Services, Inc. can specifically list and identify, at or before the hearing, the paragraphs, parts of paragraphs, or other parts of the complaint that should be stricken as required by CRC 3.1322, the motion will be GRANTED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing as to each of the sustained demurrers and granted motions to strike. Otherwise, no leave to amend will be given.

DISCUSSION:

Demurrer – Loews Hollywood Hotel LLC and Loews HH Operating Company LLC

Meet and Confer

The Declaration of Attorney Kelly J. Kim reflects that the statutory meet-and-confer requirement of CCP § 430.41 was satisfied.

Untimely Opposition

Defendants are correct that Plaintiffs’ opposition was served and filed in an untimely manner. (CCP § 1005(b).) Because of the New Year’s holiday, Plaintiffs’ opposition was served and filed only eight days before the hearing. Nevertheless, because Defendants were able to prepare a timely substantive reply, the Court exercises its discretion to consider the late-filed paper.

Analysis

First Cause of Action (Intrusion of Privacy)

Defendants demur to the first cause of action for intrusion of privacy on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person.

(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.)

As to the first element, intentional intrusion, Defendants appear to concede that this element is met, given that its argument focuses only on the “offensiveness” element. Defendants do, however, note that the actions of the window washer (“Tom DOE”) were “accidental” and that no facts are alleged to show that he “intentionally set up the up [sic] situation in which the alleged intrusion occurred,” which suggests they do not believe that the intrusion was intentional. (Demurrer, at p. 4.) The “intentional” action that is alleged here, however, is intentionally watching Plaintiffs, as opposed to averting his eyes or, as Plaintiffs suggest, moving on to another window, alerting them that he was there, or calling a supervisor. (Complaint ¶ 31 [noting that he “intentionally intruded in Plaintiffs [sic] private hotel window by lingering in the window, and intentionally staying in place to observe Plaintiffs for a meaningful period of time”].) Thus, the “intent” part of the intentional intrusion element is sufficiently alleged.

Likewise, Plaintiffs sufficiently allege that the intrusion was into a place where they had a reasonable expectation of privacy: their private hotel room on the fifteenth floor of the hotel. (Complaint ¶ 30.) In Fourth Amendment jurisprudence, for example, it is well settled that we have a reasonable expectation of privacy in hotel rooms. (Jacobs v. Superior Court (1973) 36 Cal.App.3d 489, 495 & n. 8 [explaining that “man requires some sanctuary in which his freedom to escape the intrusions of society is all but absolute” and that “[h]omes and offices clearly fall within this category of maximum protection, . . . as to hotel rooms”].)

As to the second element – that the intrusion must be “highly offensive to a reasonable person” – relevant factors include: “(1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder's motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded.” (Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 377.) This element “essentially involves a ‘policy’ determination as to whether the alleged intrusion is ‘highly offensive’ under the particular circumstances.” (Hernandez, supra, 47 Cal.4th at 287.) “California tort law provides no bright line on [‘offensiveness’]; each case must be taken on its facts.” (Ibid. (citation omitted).)

Defendants argue that the degree of intrusion “was minimal and accidental” and that Tom DOE “happened to be at the wrong place at the wrong time in a situation that was out of control.” (Demurrer, at p. 4.) It may be that Defendants will be able to prove these facts at trial, but they cannot be the basis for the Court’s decision on demurrer. Here, Plaintiffs allege that Tom DOE “intentionally” lingered in the window “for a meaningful period of time,” not that he accidentally intruded for a minimal amount of time. (Complaint ¶ 31.) They also allege that he was “intensely staring at the couple with obvious, prurient, pleasure,” that the window washing platform was “not moving at all, nor were its support cables, suggesting that it had been in place for a lengthy period of time,” that he “made no effort to avert his stare . . . nor . . . any effort to move the platform away from the window,” that he “displayed a grin,” and that it “appeared that he was also physically aroused.” (Complaint ¶¶ 20-23.)

Whether these circumstances would be “highly offensive to a reasonable person” cannot be determined as a matter of law. “While what is ‘highly offensive to a reasonable person’ suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of ‘offensiveness’ which must be made by the court in discerning the existence of a cause of action for intrusion.” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483.) For purposes of this preliminary determination, “degree” is an important factor; “a ‘party-crasher’ might not, under some circumstances, be regarded as a major tortfeasor, while an intruder upon highly personal, intimate activities or events might very well be.” (Ibid.) Here, Plaintiffs have alleged a degree of offensiveness that is sufficient at the pleading stage.

Defendants also argue that, even if Plaintiffs sufficiently alleged the elements of intrusion of privacy, they cannot be vicariously liable for Tom DOE’s actions. Abandoning its argument from that Tom DOE was merely in the “wrong place at the wrong time,” Defendants argue that they cannot be liable if Tom DOE acted with “personal malice” or otherwise substantially deviated from his employment duties for personal purposes. (Demurrer, at p. 5.) Defendants also argue that they cannot be vicariously liable because the Complaint fails to allege how they ratified Tom DOE’s actions.

A “principal may be liable for the wrongful conduct of its agent . . . in one of three ways: (1) if the “ ‘principal directly authorizes . . . [the tort or] crime to be committed’ ” . . . ; (2) if the agent commits the tort “in the scope of his employment and in performing service on behalf of the principal” . . . , “regardless of whether the wrong is authorized or ratified by [the principal]” . . . ; or (3) if the principal ratifies its agent’s conduct “after the fact by . . . voluntar[ily] elect[ing] to adopt the [agent’s] conduct . . . as its own.” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 (citations omitted).)

Here, Plaintiffs allege the following regarding vicarious liability:

35. Defendants Loews, DMS and DOES 2-100 are vicariously liable for all of the harm caused by Tom DOE 1’s conduct. . . .

36. Tom DOE 1 is and at all times relevant was, an employee of DMS and an agent of Loews and DOES 2-100. In doing the things herein described, Tom DOE 1, although he may or may not have been authorized to do so, purported to act on behalf of Defendants and committed the wrongful conduct while performing his duties as an employee/agent of Defendants. Defendants learned of and approved the herein described wrongful conduct of Tom DOE 1 after it occurred. Defendants failed to investigate and respond to their knowledge that Tom DOE 1 committed the wrongful conduct herein described, and failed to terminate him as well. Defendants also knew, or should have known prior to the subject incident, that Tom DOE 1 was unfit for the job as a window washer, and/or failed to adequately investigate DOE 1’s background in order to ascertain whether he was fit for the job, all to Plaintiffs’ damage.

37. Alternatively, Tom DOE 1 was acting within the course and scope of his agency/employment with Defendants when he committed the wrongful conduct herein described. . . .

(Complaint ¶¶ 35-37.)

These allegations are insufficient as against these Defendants. Plaintiffs do not allege that these Defendants directly hired Tom DOE, and therefore these Defendants would not be the entities that would terminate him for wrongdoing. Plaintiffs might have, for example, ratified Tom DOE’s conduct by giving his employer a bonus and asking it to continue to send Tom DOE to the hotel to perform window washing services, but Plaintiffs have not alleged anything regarding these Defendants’ actions toward the window washing company. Nor have they alleged any basis on which these Defendants would have investigated Tom DOE’s background themselves or would have known his identity before he arrived to wash windows.

Accordingly, the demurrer to the first cause of action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing as to each of the sustained demurrers and granted motions to strike. Otherwise, no leave to amend will be given.

Third Cause of Action (Negligent Hiring, Retention and Supervision)

Defendants demur to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain (CCP § 430.10(e), (f).)

Plaintiffs’ allegations regarding Defendants’ conduct are the same in connection with this cause of action as in connection with the first cause of action, and they are deficient for the same reasons. Plaintiffs do not allege facts suggesting that these Defendants negligently hired, retained, or supervised Tom DOE.

Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are “limits to the generality with which a plaintiff is permitted to state his cause of action, and … the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant's negligence has caused him injury.”

(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Plaintiffs have not alleged particular acts or omissions on the part of these Defendants that would support this cause of action.

Accordingly, the demurrer to the third cause of action for negligent hiring, retention and supervision is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given. If leave is granted, Plaintiff will be given one more opportunity to amend this cause of action.

Fifth Cause of Action (Intentional Infliction of Emotional Distress)

Defendants demur to the fifth cause of action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action and that it is uncertain. (CCP § 430.10(e), (f).)

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.) Defendants’ conduct must be “directed primarily” at Plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.)

Defendants are correct that Plaintiffs’ allegations fall short of these requirements. Plaintiffs do not allege any extreme and outrageous conduct on the part of these Defendants. In addition, as discussed in connection with the first cause of action, Plaintiffs have not sufficiently alleged that these Defendants ratified Tom DOE’s conduct for purposes of vicarious liability.

As such, the demurrer to the fifth cause of action for intentional infliction of emotional distress is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. If they do not, no leave to amend will be given.

Sixth Cause of Action (Violation of the Unruh Civil Rights Act)

Defendants demur to the sixth cause of action for violation of the Unruh Civil Rights Act on the grounds that it fails to state a cause of action and that it is uncertain. (CCP § 430.10(e), (f).)

The Unruh Civil Rights Act provides that all persons in California “are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51(b).)

Plaintiffs have not alleged any violation of this Act. They allege that “unequal treatment includes subjecting hotel guests to invasion of privacy and harassment.” (Complaint ¶ 81.) Plaintiffs have cited no authority in support of that proposition, which is repeated without citation in their opposition. Nor have they alleged any discrimination based on any of the categories listed in the statute.

The demurrer to the sixth cause of action for violation of the Unruh Civil Rights Act is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Motion To Strike: Loews Hollywood Hotel, LLC and Loews HH Operating Company, LLC

Meet and Confer

The Declaration of Attorney Kelly J. Kim reflects that the statutory meet-and-confer requirement of CCP § 435.5 was satisfied.

Defendant’s Violation of CRC 3.1322

A notice of motion to strike a portion of a pleading “must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” (CRC 3.1322(a).) Even when the motion seeks to strike full paragraphs, causes of action, counts, or defenses, [s]pecifications in a notice must be numbered consecutively.” (Ibid.)

Here, Defendants’ notice of motion does not even indicate what “portions” of the complaint it moves to strike. In fact, it is a complete mystery what Defendants move to strike until the bottom of page 3 of its 4.5-page motion. Even then, it is still a mystery, because Defendants identify no particular paragraphs, parts of paragraphs, or particular parts of Plaintiffs’ prayer for relief that should be stricken. It is not the Court’s responsibility to identify the particular parts of the complaint that should be stricken.

The Court would normally be inclined to deny the motion on this basis. However, given that Plaintiffs did not object on this basis, the Court will consider the substance of the motion. If, however, Defendants cannot specifically list and identify, at or before the hearing, the paragraphs, parts of paragraphs, or other parts of the complaint that they argue should be stricken, the motion will be denied.

Untimely Opposition

Defendants are correct that Plaintiffs’ opposition was served and filed in an untimely manner. (CCP § 1005(b).) Because of the New Year’s holiday, Plaintiffs’ opposition was served and filed only eight days before the hearing. Nevertheless, because Defendants were able to prepare a timely substantive reply, the Court exercises its discretion to consider the late-filed paper, especially in light of Defendants’ own rules violation.

Analysis

Defendants move to strike Plaintiffs’ prayer for punitive damages and unspecified other punitive damages allegations. Defendants are correct that Plaintiff’s allegations as to this Defendant do not rise to the level of “oppression, fraud, or malice” necessary for punitive damages.

“Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. § 3294(c)(2).) “Fraud” is “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.” (Id. § 3294(c)(3).)

Plaintiffs’ allegations that “Defendants and each of them, in doing the things alleged, acted willfully, maliciously, oppressively, fraudulently, and despicably” are wholly conclusory. Nowhere do Plaintiffs allege any conduct on the part of these Defendants that rises to that level. Plaintiffs do not allege, for example, that Defendants had received other complaints about the same conduct by Tom DOE or otherwise acted with any intent to injury Plaintiffs or with conscious disregard of their rights.

Accordingly, assuming that Defendants can specifically list and identify, at or before the hearing, the paragraphs, parts of paragraphs, or other parts of the complaint that should be stricken as required by CRC 3.1322, the motion will be GRANTED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Demurrer: DMS Window Cleaning & Metal Care Services, Inc.

Meet and Confer

The Declaration of Attorney John O. Mersereau reflects that the statutory meet-and-confer requirement of CCP § 430.41 was satisfied.

Untimely Opposition

Defendant is correct that Plaintiffs’ opposition was served and filed in an untimely manner. (CCP § 1005(b).) Because of the New Year’s holiday, Plaintiffs’ opposition was served and filed only eight days before the hearing. Nevertheless, because Defendant was able to prepare a timely reply (though deficient, as discussed below), the Court exercises its discretion to consider the late-filed paper.

Deficient Reply

The Court notes that Defendant’s Reply is wholly deficient, in that the memorandum of points and authorities contains no authorities other than those related to the timeliness issue discussed above. A memorandum of points and authorities “must contain a concise statement of the law, evidence, and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (CRC 3.1113(a) (bold emphasis added).) A memorandum that does not do so is singularly unhelpful to the Court. If Defendant had nothing to add to the motion itself, it was unnecessary to file a reply.

Analysis

First Cause of Action (Intrusion of Privacy)

Defendant demurs to the first cause of action for intrusion of privacy on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person.

(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.)

As to the first element, intentional intrusion, Defendant appears to concede that this element is met, given that its argument focuses only on the “offensiveness” element. Defendant does, however, note that the actions of the window washer (“Tom DOE”) were “accidental” and that no facts are alleged to show that he “intentionally set up the up [sic] situation in which the alleged intrusion occurred,” which suggests they do not believe that the intrusion was intentional. (Demurrer, at p. 4.) The “intentional” action that is alleged here, however, is intentionally watching Plaintiffs, as opposed to averting his eyes or, as Plaintiffs suggest, moving on to another window, alerting them that he was there, or calling a supervisor. (Complaint ¶ 31 [noting that he “intentionally intruded in Plaintiffs [sic] private hotel window by lingering in the window, and intentionally staying in place to observe Plaintiffs for a meaningful period of time”].) Thus, the “intent” part of the intentional intrusion element is sufficiently alleged.

Likewise, Plaintiffs sufficiently allege that the intrusion was into a place where they had a reasonable expectation of privacy: their private hotel room on the fifteenth floor of the hotel. (Complaint ¶ 30.) In Fourth Amendment jurisprudence, for example, it is well settled that we have a reasonable expectation of privacy in hotel rooms. (Jacobs v. Superior Court (1973) 36 Cal.App.3d 489, 495 & n. 8 [explaining that “man requires some sanctuary in which his freedom to escape the intrusions of society is all but absolute” and that “[h]omes and offices clearly fall within this category of maximum protection, . . . as to hotel rooms”].)

As to the second element – that the intrusion must be “highly offensive to a reasonable person” – relevant factors include: “(1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder's motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded.” (Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 377.) This element “essentially involves a ‘policy’ determination as to whether the alleged intrusion is ‘highly offensive’ under the particular circumstances.” (Hernandez, supra, 47 Cal.4th at 287.) “California tort law provides no bright line on [‘offensiveness’]; each case must be taken on its facts.” (Ibid. (citation omitted).)

Defendant argues that the degree of intrusion “was minimal and accidental” and that Tom DOE “happened to be at the wrong place at the wrong time in a situation that was out of control.” (Demurrer, at p. 4.) It may be that Defendant will be able to prove these facts at trial, but they cannot be the basis for the Court’s decision on demurrer. Here, Plaintiffs allege that Tom DOE “intentionally” lingered in the window “for a meaningful period of time,” not that he accidentally intruded for a minimal amount of time. (Complaint ¶ 31.) They also allege that he was “intensely staring at the couple with obvious, prurient, pleasure,” that the window washing platform was “not moving at all, nor were its support cables, suggesting that it had been in place for a lengthy period of time,” that he “made no effort to avert his stare . . . nor . . . any effort to move the platform away from the window,” that he “displayed a grin,” and that it “appeared that he was also physically aroused.” (Complaint ¶¶ 20-23.)

Whether these circumstances would be “highly offensive to a reasonable person” cannot be determined as a matter of law. “While what is ‘highly offensive to a reasonable person’ suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of ‘offensiveness’ which must be made by the court in discerning the existence of a cause of action for intrusion.” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483.) For purposes of this preliminary determination, “degree” is an important factor; “a ‘party-crasher’ might not, under some circumstances, be regarded as a major tortfeasor, while an intruder upon highly personal, intimate activities or events might very well be.” (Ibid.) Here, Plaintiffs have alleged a degree of offensiveness that is sufficient at the pleading stage.

Defendant also argues that, even if Plaintiffs sufficiently alleged the elements of intrusion of privacy, it cannot be vicariously liable for Tom DOE’s actions. Abandoning its argument from that Tom DOE was merely in the “wrong place at the wrong time,” Defendant argues that it cannot be liable if Tom DOE acted with “personal malice” or otherwise substantially deviated from his employment duties for personal purposes. (Demurrer, at p. 5.) Defendant also argues that it cannot be vicariously liable because the Complaint fails to allege how it ratified Tom DOE’s actions.

A “principal may be liable for the wrongful conduct of its agent . . . in one of three ways: (1) if the “ ‘principal directly authorizes . . . [the tort or] crime to be committed’ ” . . . ; (2) if the agent commits the tort “in the scope of his employment and in performing service on behalf of the principal” . . . , “regardless of whether the wrong is authorized or ratified by [the principal]” . . . ; or (3) if the principal ratifies its agent’s conduct “after the fact by . . . voluntar[ily] elect[ing] to adopt the [agent’s] conduct . . . as its own.” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 (citations omitted).)

Here, Plaintiffs allege the following regarding vicarious liability:

35. Defendants Loews, DMS and DOES 2-100 are vicariously liable for all of the harm caused by Tom DOE 1’s conduct. . . .

36. Tom DOE 1 is and at all times relevant was, an employee of DMS and an agent of Loews and DOES 2-100. In doing the things herein described, Tom DOE 1, although he may or may not have been authorized to do so, purported to act on behalf of Defendants and committed the wrongful conduct while performing his duties as an employee/agent of Defendants. Defendants learned of and approved the herein described wrongful conduct of Tom DOE 1 after it occurred. Defendants failed to investigate and respond to their knowledge that Tom DOE 1 committed the wrongful conduct herein described, and failed to terminate him as well. Defendants also knew, or should have known prior to the subject incident, that Tom DOE 1 was unfit for the job as a window washer, and/or failed to adequately investigate DOE 1’s background in order to ascertain whether he was fit for the job, all to Plaintiffs’ damage.

37. Alternatively, Tom DOE 1 was acting within the course and scope of his agency/employment with Defendants when he committed the wrongful conduct herein described. . . .

(Complaint ¶¶ 35-37.)

These allegations are insufficient as against this Defendants. Plaintiffs do not allege that this Defendant directly hired Tom DOE, and therefore this Defendant would not be the entity that would terminate him for wrongdoing, as alleged. This Defendant was substituted into the lawsuit as DOE 2, which, like the Loews Defendants discussed above, is not alleged to be Tom DOE’s employer. Tom DOE is alleged to be an agent of DOE 2. (Complaint ¶ 36.)

Accordingly, the demurrer to the first cause of action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing as to each of the sustained demurrers and granted motions to strike. Otherwise, no leave to amend will be given.

Third Cause of Action (Negligent Hiring, Retention and Supervision)

Defendant demurs to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain (CCP § 430.10(e), (f).)

Plaintiffs’ allegations regarding Defendants’ conduct are the same in connection with this cause of action as in connection with the first cause of action, and they are deficient for the same reasons. Plaintiffs do not allege facts suggesting that these Defendants negligently hired, retained, or supervised Tom DOE.

Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are “limits to the generality with which a plaintiff is permitted to state his cause of action, and … the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant's negligence has caused him injury.”

(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Plaintiffs have not alleged particular acts or omissions on the part of this Defendant that would support this cause of action.

Accordingly, the demurrer to the third cause of action for negligent hiring, retention and supervision is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given. If leave is granted, Plaintiff will be given one more opportunity to amend this cause of action.

Fifth Cause of Action (Intentional Infliction of Emotional Distress)

Defendant demurs to the fifth cause of action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action and that it is uncertain. (CCP § 430.10(e), (f).)

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.) Defendants’ conduct must be “directed primarily” at Plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.)

Defendant is correct that Plaintiffs’ allegations fall short of these requirements. Plaintiffs do not allege any extreme and outrageous conduct on the part of this Defendant. In addition, as discussed in connection with the first cause of action, Plaintiffs have not sufficiently alleged that this Defendant ratified Tom DOE’s conduct for purposes of vicarious liability.

As such, the demurrer to the fifth cause of action for intentional infliction of emotional distress is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. If they do not, no leave to amend will be given.

Sixth Cause of Action (Violation of the Unruh Civil Rights Act)

Defendant demurs to the sixth cause of action for violation of the Unruh Civil Rights Act on the grounds that it fails to state a cause of action and that it is uncertain. (CCP § 430.10(e), (f).)

The Unruh Civil Rights Act provides that all persons in California “are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51(b).)

Plaintiffs have not alleged any violation of this Act. They allege that “unequal treatment includes subjecting hotel guests to invasion of privacy and harassment.” (Complaint ¶ 81.) Plaintiffs have cited no authority in support of that proposition, which is repeated without citation in their opposition. Nor have they alleged any discrimination based on any of the categories listed in the statute.

The demurrer to the sixth cause of action for violation of the Unruh Civil Rights Act is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Motion to Strike: DMS Window Cleaning & Metal Care Services, Inc.

Meet and Confer

The Declaration of Attorney John O. Mersereau reflects that the statutory meet-and-confer requirement of CCP § 435.5 was satisfied.

Defendant’s Violation of CRC 3.1322

A notice of motion to strike a portion of a pleading “must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” (CRC 3.1322(a).) Even when the motion seeks to strike full paragraphs, causes of action, counts, or defenses, [s]pecifications in a notice must be numbered consecutively.” (Ibid.)

Here, Defendant’s notice of motion does not even indicate what “portions” of the complaint it moves to strike. In fact, it is a complete mystery what Defendant moves to strike until the bottom of page 4 of its 5.5-page motion. Even then, it is still a mystery, because Defendant identifies no particular paragraphs, parts of paragraphs, or particular parts of Plaintiffs’ prayer for relief that should be stricken. It is not the Court’s responsibility to identify the particular parts of the complaint that should be stricken.

The Court would normally be inclined to deny the motion on this basis. However, given that Plaintiffs did not object on this basis, the Court will consider the substance of the motion. If, however, Defendant cannot specifically list and identify, at or before the hearing, the paragraphs, parts of paragraphs, or other parts of the complaint that it argues should be stricken, the motion will be denied.

Untimely Opposition

Defendant is correct that Plaintiffs’ opposition was served and filed in an untimely manner. (CCP § 1005(b).) Because of the New Year’s holiday, Plaintiffs’ opposition was served and filed only eight days before the hearing. Nevertheless, because Defendant was able to prepare a timely substantive reply, the Court exercises its discretion to consider the late-filed paper, especially in light of Defendant’s own rules violation.

Analysis

Defendant moves to strike Plaintiffs’ prayer for punitive damages and unspecified other punitive damages allegations. Defendant is correct that Plaintiff’s allegations as to this Defendant do not rise to the level of “oppression, fraud, or malice” necessary for punitive damages.

“Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. § 3294(c)(2).) “Fraud” is “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.” (Id. § 3294(c)(3).)

Plaintiffs’ allegations that “Defendants and each of them, in doing the things alleged, acted willfully, maliciously, oppressively, fraudulently, and despicably” are wholly conclusory. Nowhere do Plaintiffs allege any conduct on the part of this Defendant that rises to that level. Plaintiffs do not allege, for example, that Defendant had received any complaints about the same conduct by Tom DOE, hired him knowing that he was a habitual “peeping Tom,” or otherwise acted with any intent to injury Plaintiffs or with conscious disregard of their rights.

Accordingly, assuming that Defendant can specifically list and identify, at or before the hearing, the paragraphs, parts of paragraphs, or other parts of the complaint that should be stricken as required by CRC 3.1322, the motion will be GRANTED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: January 8, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court
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