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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
MCKINNEY JASETTE H.
A COMMUNITY OF FRIENDS INC
ROBERTSON PROPERTY MANAGEMENT
FIGUEROA COURT APARTMENTS LP
DOES 1 TO 50
HARTFORD SECURITY COMPANY INC
JANFAZA RON A. ROSEN ESQ.
JANFAZA RON A. ESQ.
1/28/2019: Minute Order
5/21/2019: Minute Order
8/14/2017: COMPLAINT FOR DAMAGES 1. ASSAULT & BATTERY ;ETC
at 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 MotionRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Failure to File Proof of Service & TSC)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES 1. ASSAULT & BATTERY ;ETCRead MoreRead Less
Complaint; Filed by JASETTE H. MCKINNEY (Plaintiff)Read MoreRead Less
Case Number: BC672441 Hearing Date: October 31, 2019 Dept: 4B
[TENTATIVE] ORDER RE: DEFENDANT A COMMUNITY OF FRIENDS, INC.’S DEMURRER TO COMPLAINT
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.)
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 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.
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.
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.