This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 05:02:29 (UTC).

JASETTE H MCKINNEY VS FIGUEROA COURT APARTMENTS LP ET AL

Case Summary

On 08/14/2017 JASETTE H MCKINNEY filed a Personal Injury - Other Personal Injury lawsuit against FIGUEROA COURT APARTMENTS LP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. SEIGLE. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2441

  • Filing Date:

    08/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

LAURA A. SEIGLE

 

Party Details

Plaintiff

MCKINNEY JASETTE H.

Defendants

A COMMUNITY OF FRIENDS INC

ROBERTSON PROPERTY MANAGEMENT

FIGUEROA COURT APARTMENTS LP

HARTFORD SECURITY COMPANY INC

Attorney/Law Firm Details

Plaintiff Attorney

JANFAZA RON A. ESQ.

 

Court Documents

COMPLAINT FOR DAMAGES 1. ASSAULT & BATTERY ;ETC

8/14/2017: COMPLAINT FOR DAMAGES 1. ASSAULT & BATTERY ;ETC

SUMMONS

8/14/2017: SUMMONS

Minute Order

5/21/2019: Minute Order

Minute Order

1/28/2019: Minute Order

 

Docket Entries

  • 05/21/2019
  • Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Order to Show Cause Re: Failure to File Proof of Service (& TSC) - Not Held - Continued - Court's Motion

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  • 05/21/2019
  • DocketMinute Order ( (Order to Show Cause Re: Failure to File Proof of Service & TSC)); Filed by Clerk

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  • 02/14/2019
  • Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 01/28/2019
  • Docketat 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 01/28/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 08/14/2017
  • DocketSUMMONS

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  • 08/14/2017
  • DocketCOMPLAINT FOR DAMAGES 1. ASSAULT & BATTERY ;ETC

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  • 08/14/2017
  • DocketComplaint; Filed by JASETTE H. MCKINNEY (Plaintiff)

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Tentative Rulings

Case Number: ****2441    Hearing Date: November 05, 2020    Dept: A

# 11. McKinney v. Figueroa Court Apartments LP., et al

Case No.: ****2441

Matter on calendar for: Demurrer to SAC (x2); motion to strike SAC (x2)

  1. Background

This is an intentional tort action. Plaintiff Jasette H. McKinney (“Plaintiff”) alleges that she was assaulted by a security guard (named as Doe 1), a female property manager (named as Doe 3), and the property manager’s husband (named as Doe 2), while on premises owned and operated by Defendants A Community of Friends, Inc. (“ACF”) and Figueroa Court Apartments, LP (“Figueroa”). The premises are guarded by Defendant Hartford Security Company, Inc. (“Hartford”). Defendant Robertson Property Management is named in the caption but there are no allegations against this entity.

The operative Second Amended Complaint (“SAC”) filed on August 14, 2020 alleges the following causes of action:

(1) Assault & battery; ;

(2) Intentional Infliction of emotional distress; ;

(3) Negligent hiring, training, supervision, and retention of employees; ;

(4) Negligence; and

(5) Violation of the Bane Civil Rights Act.

ACF together with Figueroa, and Hartford, demur to the entire SAC and move to strike the SAC’s prayers for punitive damages, Bane Act treble damages and civil penalties, attorney fees, and criminal restitution. The motions are opposed. ;

For the reasons set forth below, the Court sustains the demurrers without leave to amend and denies as moot the motions to strike.

  1. Standard

    1. Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., ; 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure ; 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

    1. Motion to strike

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (C.C.P., ; 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (C.C.P., ;; 436(a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 

  1. Analysis

    1. Relevant Procedural History

Plaintiff filed two pleadings—the initial Complaint and the First Amended Complaint (“FAC”)—before the operative SAC. Defendants ACF, Figueroa, and Hartford (collectively “Defendants”) filed earlier demurrers and motions to strike connected to those pleadings. On July 16, 2020, when the Court sustained the demurrers and granted the motions to strike the FAC with leave to amend, the Court generally held that the FAC stated conclusory, boilerplate allegations.

    1. “Sham” Pleading

After an amended pleading is filed, courts generally disregard the previous pleading. (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.) However, courts may examine previous pleadings to determine whether the amended pleading is a “sham.” “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations].” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)

As defendants correctly note, "'[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false.'" McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1491; Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-26. "The policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint." Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384 (emphasis original).

Defendants contend that the SAC is a sham pleading; Plaintiff does not respond to this argument. After a review of the Complaint filed on August 14, 2017, FAC filed on November 20, 2019, and the SAC filed on August 14, 2020, the Court finds that the SAC is a sham pleading, because the factual allegations have changed in material, inconsistent ways. First, the single incident of assault as previously alleged (Complaint ¶ 7 and FAC ¶ 7) has now morphed into three separate incidents (SAC ¶¶ 11-18). Second, the three unknown male security personnel who were Plaintiff’s assailants as previously alleged (FAC 4:27-28) have now become two males and one female, and employees of all three entity defendants (SAC 9:26-27). Third, the assault that was a generic, unexplained civil rights problem as previously alleged (Complaint ¶¶ 52-62 and FAC ¶¶ 42-53) are now alleged as a specific “hate crime” incident with the addition of the use of a racial slur (SAC ¶ 68).

These are not trivial, minor differences, but major inconsistencies that Plaintiff failed to explain. The SAC includes newly-alleged injuries from newly-alleged assaults by newly-alleged assailants. They do not relate back to the original allegations. See Walton v. Guinn (1986) 187 Cal.App.3d 1354, 1362. The inclusion of these allegations without any explanation as to why Plaintiff did not make these allegations in earlier pleadings—going back multiple years—or any explanation of the inconsistencies, renders the SAC a sham pleading.

Plaintiff also fails to justify why leave to amend should be granted yet again. The demurrers are sustained without leave to amend.

    1. Motions to Strike

Because the Court has sustained the demurrers, the motions to strike are moot.

  1. Ruling

    The demurrers are sustained without leave to amend. The motions to strike are denied as moot.

    Defendants are to prepare a proposed judgment and file it within 20 days.

    Defendants are to give notice of this ruling.



Case Number: ****2441    Hearing Date: July 16, 2020    Dept: A

# 5. Jasette McKinney v. Figueroa Court Apartments, LP, et al.

Case No.: ****2441

Matter on calendar for: Demurrer (x2) and Motion to Strike (x2) the FAC

Tentative ruling:

  1. Background

Plaintiff Jasette McKinney alleges she was assaulted by a security guard (named as Doe 1) while on premises owned and operated by defendants A Community of Friends, Inc. (“ACF”), Robertson Property Management and Hartford Security Company, Inc.

The First Amended Complaint (“FAC”) alleges the following causes of action:

  1. Assault & battery;

  2. Intentional Infliction of emotional distress;

  3. Negligent hiring, training, supervision, and retention of employees;

  4. Negligence; and

  5. Violation of the Bane Civil Rights Act

    ACF and Hartford have filed separate demurrers and motions to strike the FAC. The motions are opposed.

    For the reasons set forth below, the Court sustains the demurrers and grants the motions to strike with leave to amend.

  1. Standard

    1. Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., ; 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) Under Code Civil Procedure ; 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

    1. Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (C.C.P., ; 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (C.C.P. ; 437.) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (C.C.P., ;; 436(a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 

  1. Analysis

    1. Vicarious liability

Defendants demur to causes of action one and two on the basis that McKinney failed to adequately allege vicarious liability.

McKinney seeks to hold Doe 1’s alleged employers liable for the actions of their employee. An employer is “vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal. 4th 294, 296.) An employer is liable for the intentional torts of its employees if the tort is engendered by the employment; “the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Id. at 297–298.) Alternatively, “an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citation.]” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169.)

ACF’s demurrer to the Complaint was sustained because McKinney failed to include any factual allegations that the security guard acted within the course and scope of his employment or that ACF ratified his conduct. (Minute Order, October 31, 2019, pg. 3.) The FAC suffers from the same flaw: it lacks factual allegations concerning whether the alleged assault was within the course and scope of employment or how ACF or Hartford ratified the conduct. Instead, the FAC contains the same conclusory allegations as in the Complaint. (FAC, ¶¶ 7–14; Complaint, ¶¶ 7–14.) The principal difference between the two pleadings appears to be the allegation that McKinney was assaulted by three security personnel, instead of one. (FAC, ¶ 13; Complaint, ¶ 13.) However many security guards allegedly were involved, the pleading must include additional factual allegations to state a vicarious liability claim against defendants.

The demurrers to the first and second causes of action are sustained with leave to amend.

    1. Negligent hiring, training, supervision and retention

The elements of a negligent hiring, training, supervision and retention cause of action are: (1) at the time of the hiring, the employee had certain characteristics that would make him unsuitable for the position, or lack certain requisite skills; (2) at the time of the hiring, the employer must have known of these characteristics or lack of skills; (3) said characteristics or lack of skills caused the plaintiff’s injury. (CACI No. 426.)

McKinney alleges that defendants “knew, or in the reasonable exercise of diligence should have known, that [the security personnel] were unfit and incompetent to perform the duties for which they were hired . . . .” (FAC, ¶ 28.) As noted in the Court’s previous ruling, “boilerplate allegations that defendants knew or were on notice of the perpetrator’s past unlawful . . . conduct” are not sufficient. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551 fn. 5.)

The demurrers to the third cause of action are sustained with leave to amend.

    1. Negligence

The elements of negligence are: (1) legal duty owed to plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The FAC alleges that defendants “have a duty to keep patrons such as Plaintiff safe and free from assault and battery.” (FAC, ¶ 37.) McKinney fails to allege that the employer defendants owed a legal duty that distinguishes this cause of action from the third cause of action for negligent hiring. The negligence cause of action is derivative and duplicative of the prior causes of action.

The demurrer to the fourth cause of action is sustained with leave to amend. The Court notes that Hartford did not demur to the fourth cause of action.

    1. Bane Civil Rights Act (Civil Code ; 52.1)

The Bane Act was adopted “ ‘to stem a tide of hate crimes.’ [Citation.]” (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843.) It “provides remedies for ‘certain misconduct that interferes with’ federal or state laws, if accompanied by threats, intimidation, or coercion, and whether or not state action is involved. [Citation.]” (Ibid.) The Bane Act “does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.” (Venegas, supra, 32 Cal.4th at 843.)

McKinney’s fifth cause of action relies on its vicarious liability causes of action, so the demurrers are sustained on that ground. Further, McKinney once again failed to supply authority applying the Bane Act to the allegations made here.

The demurrer to the fifth cause of action is sustained with leave to amend.

    1. Motions to Strike

      Defendants’ motions move to strike McKinney’s request for punitive damages and attorneys’ fees.

      California Civil Code ; 3294 allows for punitive damages against defendants if, by clear and convincing evidence, they have been guilty of oppression, fraud, or malice. (Civ. Code ; 3294.) 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(c)(1).)

      To recover punitive damages against an employer a plaintiff must show “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, ; 3294(b).) When the defendant is a corporate employer, “the 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.” (Ibid.)

      As discussed above, McKinney has failed to satisfactorily allege causes of action against the employer defendants. Accordingly, she also has failed to state a ground for the recovery of punitive damages.

      Code of Civil Procedure ; 1033.5(a) lists the costs that are recoverable and includes attorney’s fees when they are authorized by either contract, statute, or law. (C.C.P., ; 1033.5(a)(10).) With the sustaining of the demurrers, McKinney has failed to allege a basis for attorneys’ fees.

      The motions to strike are granted with leave to amend.

  1. Ruling

    The demurrers are sustained and the motions to strike are granted, with 20 days’ leave to amend. Any responsive pleading is due 20 days thereafter or 25 if served by mail.

    Next dates:

    Notice:



Case Number: ****2441    Hearing Date: October 31, 2019    Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT A COMMUNITY OF FRIENDS, INC.’S DEMURRER TO COMPLAINT

I. INTRODUCTION

On August 14, 2017, plaintiff Jasette H. McKinney (“Plaintiff”) filed this action against defendant A Community of Friends, Inc. (“Defendant”), Robertson Property Management (“RPM”) and Hartford Security Company, Inc. (“Hartford”). Plaintiff alleges she was assaulted by a security guard (named as Doe 1) on premises owned and operated by the defendants and pleads six causes of action: assault and battery, intentional infliction of emotional distress, negligent hiring/retention/supervision, negligence, false imprisonment, and alleged violation of the Bane Act. Defendant demurs to all six causes of action on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action.

II. LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., ; 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., ; 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III. DISCUSSION

First Cause of Action for Assault and Battery and Second Cause of Action for Intentional Infliction of Emotional Distress

Defendant demurs to the first and second causes of action on the grounds that the Complaint fails to plead facts imposing liability upon an employer for the alleged intentional tort of an employee. A corporate employer’s potential liability for an alleged intentional tort an employee requires knowledge and conduct which constitutes ratification of the alleged misconduct. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-70.)

Defendant argues Plaintiff did not sufficiently plead that Defendant ratified the actions of Doe 1, the security guard because the Complaint alleges in conclusory fashion that “Defendants’ owners, founders, partners and/or managing directors authorized and ratified the actions of DOES 1 through 30.”

Plaintiff argues the allegations are sufficient because “there are clearly many facts alleged establishing that all Defendants were responsible for the assault & battery of Plaintiff through threatened and unlawful use of force” and that elements for extreme and outrageous conduct by all of the defendants is sufficiently pled.

Plaintiff cites to nothing in the Complaint to support her assertions. To the extent Plaintiff intended to show ratification by alleging “Defendants’ owners, founders, partners and/or managing directors authorized and ratified the actions of DOE 1 ultimately destroying evidence of Doe 1’s conduct as well as other acts to be investigated,” Plaintiff does not allege facts to support that charge of spoliation.” (Complaint, ¶ 25.) For example, Plaintiff does not allege which defendant authorized or ratified the security guard’s actions, how that defendant authorized or ratified the actions, or which defendant destroyed what evidence.

Defendant also demurs to the first and second causes of action on the grounds that they do not sufficiently plead vicarious liability because there are no factual allegations that the security guard acted within the course and scope of his employment. The Complaint does not allege which defendant employed the security guard and how the alleged assault was within the scope of his employment.

Accordingly, Defendant’s demurrer to the First and Second Causes of Action are SUSTAINED with 20 days’ leave to amend.

Third Cause of Action for Negligent Hiring, Training, Supervision and/or Retention

To prevail on a cause of action for negligent training, supervision, or retention, a plaintiff must show that: (1) at the time of the hiring, the employee had certain characteristics that would make him unsuitable for the position, or lack certain requisite skills; (2) at the time of the hiring, the employer must have known of these characteristics or lack of skills; (3) said characteristics or lack of skills caused the plaintiff’s injury. (CACI No. 426.)

Defendant argues Plaintiff failed to identify “the background, history, or other description” of the security guard that made him unfit and incompetent. The Complaint alleges the security guard “possessed violent tendencies and would engage in inappropriate and dangerous conduct.” These allegations sufficiently identify the characteristic that made the security guard unsuitable for his position.

Defendant also argues there are no facts about Defendant’s advance knowledge and conscious disregard of Plaintiff’s propensity to commit violence, and that Plaintiff cannot adequately allege such knowledge because Plaintiff does not identify the security guard. The Complaint alleges the defendants were aware of Doe 1’s criminal background. (Complaint, ¶ 14.) “[B]oilerplate allegations that defendants knew or were on notice of the perpetrator’s past unlawful . . . conduct” is not sufficient. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, n.5.) Accordingly, Defendant’s demurrer to Plaintiff’s Third Cause of Action is SUSTAINED with 20 days’ leave to amend.

Fourth Cause of Action for Negligence

Defendant demurs to the Fourth Cause of Action for Negligence on the grounds that it fails to identify any alleged duty or breach of duty by Defendant. Plaintiff’s opposition does not address this argument.

To the extent Plaintiff alleges that Defendant was negligent in hiring, supervising, or retaining Doe 1, this is duplicative of Plaintiff’s Third Cause of Action. A demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) Accordingly, Defendant’s demurrer to the Fourth Cause of Action for Negligence is SUSTAINED with 20 days’ leave to amend.

Fifth Cause of Action for False Imprisonment

Defendant argues Plaintiff’s fifth cause of action for false imprisonment is time-barred. That cause of action as a one year statute of limitations. (Code Civ. Proc., ; 340, subd. (c).) Plaintiff’s allegations concern an incident on August 15, 2015. Plaintiff filed this case on August 14, 2017, almost two years later. Plaintiff’s opposition fails to address the statute of limitations. Thus, the Court SUSTAINS the demurrer against the fifth cause of action for false imprisonment without leave to amend.

Sixth Cause of Action for Bane Act Violation

Defendant demurs to the sixth cause of action on grounds that the allegations fail to establish ratification or that the security guard acted within the course and scope of his employment. For the reasons discussed above, the demurrer to the Sixth Cause of Action on this ground is SUSTAINED with 20 days’ leave to amend.

Defendant also argues the sixth cause of action does not identify a state actor that engaged in unconstitutional conduct. A state actor is not necessarily required. The right at issue in Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 was the protection against unreasonable search and seizure as proscribed by the Fourth Amendment, which implicates governmental intrusion or acquisition.

Defendant also argues that Plaintiff fails to state a claim for a Bane Act violation because assault and battery alone cannot be the basis for a violation. The Bane Act does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interfere with a constitutional or statutory right. (Venegas v. Cty. of Los Angeles (2004) 32 Cal.4th 820, 843.) Plaintiff does not identify any law allowing a Bane Act claim based on assault and battery alone. Plaintiff does not sufficiently allege how Defendant threatened, intimidated or coerced Plaintiff to prevent her from doing something she had the right to do or to force her to do something that she was not required to do. Accordingly, Defendant’s demurrer to the Sixth Cause of Action is SUSTAINED with 20 days’ leave to amend.

Motion to Strike

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

Defendant moves to strike allegations of ratification, intentional conduct, Doe 1’s scope of employment, punitive damages, damages recoverable under Civil Code ;; 51 and 52.1, treble damages, a civil penalty of $25,000 and attorney’s fees. (See Notice of Motion and Motion to Strike, p. 2-4.) Some of these requests are mooted by the rulings on the demurrer.

Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, ; 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, ; 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the 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, subd. (b).)

The Complaint alleges that all of the defendants employed the security guard. The complaint does not specifically allege that an officer, director or managing agent of Defendant knew of, authorized, or ratified the security guard’s acts. Accordingly, the Court GRANTS the motion to strike the request for punitive damages against Defendant with 20 days’ leave to amend.

Attorney’s Fees

Defendant moves to strike Plaintiff’s request for attorney’s fees. Attorney’s fees are only recoverable by contract or if specifically allowed by statute. (Code Civ. Proc., ; 1021.) Plaintiff does not allege a contract, and as discussed above, Plaintiff’s Bane Act allegations are insufficient. Accordingly, the Court GRANTS the motion to strike the request for attorneys’ fees against Defendant with 20 days’ leave to amend.

IV. CONCLUSION

Defendant’s demurrer to the First, Second, Third, Fourth, and Sixth Causes of Action are SUSTAINED with 20 days’ leave to amend.

Defendant’s demurrer to the Fifth Cause of Action for False Imprisonment is SUSTAINED without leave to amend.

The motion to strike punitive damages and attorneys’ fees against Defendant is GRANTED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.



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