Case Name: Jeremy Korpas v. Elite Show Services, et al.

Case No.: 17CV311874

I. Background

This action arises from security guards detaining Jeremy Korpas (“Plaintiff”) during a concert at Levi’s Stadium.

According to the allegations of the First Amended Complaint (“FAC”), during the concert Plaintiff left a VIP seating area and was prevented from reentering by a security guard who forcefully removed the wristband used by Plaintiff to originally gain access to the area. After removing the wristband the guard yelled at Plaintiff and bumped Plaintiff backward. The guard’s aggressive demeanor and actions caused Plaintiff to fear for his safety. Following an unsuccessful attempt to speak to that security guard’s supervisor, Plaintiff watched the remainder of the concert from another area.

At the end of the concert, Plaintiff again approached the VIP area in an attempt to rejoin the group with whom he had originally been watching the concert. As Plaintiff called for his girlfriend another guard, Anthony Gonzales (“Gonzales”), grabbed Plaintiff from behind without warning and attempted to handcuff him. Gonzales is employed by Elite Show Services (“Elite”). At the same time, the security guard who previously denied Plaintiff access to the VIP area tackled Plaintiff and pinned him to the ground, as additional guards held down his legs. Gonzales wrenched Plaintiff’s arms behind his back and handcuffed him while shouting and threatening Plaintiff aggressively. Gonzales then lifted Plaintiff from the ground by the handcuffs and dragged him towards two uniformed Santa Clara police officers for further questioning. They instructed Gonzales to remove the handcuffs, and Plaintiff was taken to the side of the stage where his personal information and photograph were collected. Plaintiff was then informed he would be required to attend a “fan conduct class” at his own expense if he wished to be allowed back to the stadium in the future.

Following the incident Plaintiff filed the instant action against Elite, Debartolo Corporation, Forty Niners Stadium Management Company LLC, Forty Niners SC Stadium Company LLC, Gonzales and does. Plaintiff asserts the following causes of action: (1) battery; (2) assault; (3) negligent hiring, supervision, and retention; (4) negligence; (5) false imprisonment; (6) intentional infliction of emotional distress; and (7) vicarious liability. Plaintiff asserts all causes of action against all defendants, with two exceptions. Plaintiff asserts the third cause of action against all defendants except Gonzales, and the seventh cause of action against Elite only.

Before the Court is a demurrer by Forty Niners SC Stadium Company LLC and Forty Niners Stadium Management Company LLC (collectively “Defendants”) to the first, second, third, fifth, and sixth causes of action on the ground of failure to state sufficient facts pursuant to Code of Civil Procedure, section 430.10, subdivision (e).

II. Request for Judicial Notice

Plaintiff submitted a request for judicial notice with his opposition, wherein he requested judicial notice of the FAC. Pursuant to Evidence Code, section 452, subdivision (d) the Court may take judicial notice of court records. (Evid. Code, § 452, subd. (d)). Thus, the Court GRANTS the request for judicial notice of the FAC. (See Ibid; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [the court may properly take judicial notice of court records if those records are deemed to be necessary and relevant to the disposition of the motion].) However it is unnecessary to take judicial notice of the Complaint because it is the pleading under review. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) When ruling on a demurrer the Court must consider and treat as true all facts properly alleged in the operative pleading. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Therefore, even if judicial notice was not requested, the Court would consider the FAC.

III. Merits of the Demurrer

First, Defendants argue the allegations in the FAC adequately support each cause of action against Elite, but not against Defendants. Defendants reason because Plaintiff alleges the guards that harmed him were Elite’s employees, and not Defendants’ employees or agents, no cause of action is stated against Defendants.

To address this argument the Court must interpret the allegations of the FAC. A few well known principles guide the Court’s interpretation of the FAC. A demurrer admits the truth of the allegations in the complaint, and does not contest their truth. (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at 604 ; Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 214.) When ruling on a demurrer courts construe the complaint liberally with a view to substantial justice between the parties, including drawing inferences favorable to the Plaintiff rather than the Defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Defendants rely upon paragraphs two and six of the FAC, which according to Defendants show “ELITE SHOW SERVICES employed the security guards.” (See Dem., p. 7:25.) These paragraphs are the only part of the FAC Defendants cite in support of their argument. Paragraph two states Elite is “in the business and practice of providing professional event staff and security personnel at and to various facilities and events…” (FAC, ¶ 2.) Paragraph two does not state Elite employed all the guards at the concert in question or even that Elite employed the guards that interacted with Plaintiff. (Ibid.) Similarly, paragraph six states Gonzalez “is an employee of Elite Security working for Elite Security at Levi’s Stadium…” (FAC, ¶ 6.) Paragraph six does not address the employment of any other guards. (Ibid.) Defendant’s interpretation of the FAC is therefore incorrect in that the cited portions of the FAC do not allege all the security guards who interacted with Plaintiff were employed by Elite, or that no guards involved in the incident were employed by Defendants.

While Elite’s alleged employment of Gonzales, rather than all the guards as Defendants contend, narrows the scope of Defendants’ argument it does not foreclose it entirely. Under the doctrine of respondeat superior, an employer is vicariously liable for his or her employee’s torts committed within the scope of their employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.) Whether an act was within the scope of employment has been defined various ways, including whether the tort was a foreseeable part of the employees duties. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298-9.) If any cause of action is based solely on Gonzalez’ conduct and within the scope of his employment by Elite, Defendants argument may still support a demurrer to that cause of action. However, none of the challenged causes of action stem from Gonzalez acting alone. Each challenged cause of action is supported by allegations of Gonzalez working in concert with other guards, or another guard committing tortious conduct. Therefore, even assuming Defendants had absolutely no relationship with Gonzales or responsibility for his actions, they could be liable through the other guards.

Defendants ask the Court to draw an inference from the FAC. Plaintiff alleges Elite was in the business of providing security services, and Elite employed Gonzales, one security guard involved in the incident in question. From these two allegations Defendants argue the Court should infer Elite also employed the remainder of the guards and thus Elite was responsible for their conduct. By this logic Defendants and any other party besides Elite are blameless. However, the Court cannot make this logical leap because when interpreting the FAC on demurrer the Court must draw inferences favorable to the Plaintiff rather than the Defendant. (See Perez v. Golden Empire Transit Dist., supra, 209 Cal.App.4th at 1238.)

Such a leap would also be at odds with Plaintiff’s allegations. Plaintiff alleges “each of the Defendants was the agent, alter-ego, servant … and/or employee of each of the remaining Defendants…” (FAC, ¶ 8.) Plaintiff also alleges all defendants, including Defendants, “managed, controlled, supervised … the subject premises.” (FAC, ¶ 11.) Finally, Plaintiff alleges all defendants, including Defendants “owed a duty to Plaintiff, and all other concert attendees, to … instruct, monitor, and prevent its employees and/or security personnel from using excessive and/or unreasonable force in the detention of attendees…” (FAC, ¶ 12.) These general allegations are inconsistent with Defendants’ assertion that Elite and only Elite employed the security guards at the event and supervised their actions. Conversely, these allegations are consistent with Plaintiff’s contention that he has pleaded “either Elite or Defendants (or both) hired the security guards who used excessive force on Korpas” and that “Defendants possessed some kind of supervisory or management role over security personnel.” (See Opp., p. 3:23-24, 27-28.) The FAC is not a model of clarity, and later in the litigation Plaintiff will have to provide evidence connecting Defendants to the security guards who harmed him. Yet, when ruling on a demurrer the Court must accept the allegations as true, however unlikely they may seem. (See Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at 604.) Therefore, the Court cannot infer from the portion of the FAC cited by Defendants that they had no employment relationship with any of the guards involved, that they did not control any guards, and that the guards were not acting as their agents.

In opposition, Plaintiff asserts that even if Elite employed all the guards involved in the instant case, “the hirer of security personnel can be held vicariously liable for the intentional torts of the employees.” (Opp., p. 3:9-10.) Thus, Plaintiff insists the FAC should survive demurrer on the theory that Defendants hired Elite, and are liable for the torts of Elite’s employees. The Court need not decide on this argument in Plaintiff’s opposition because the language cited by Defendants does not adequately support their demurrer in the first instance.

The forgoing is sufficient to overrule the demurrer as to the first, second, third, fifth, and sixth causes of action. Defendants ask the Court to draw a factual inference in their favor, specifically that Elite employed all the relevant guards. A demurrer is not the appropriate procedural posture to address factual disputes, and the Court must interpret the FAC in favor of the Plaintiff at this stage. Accordingly, the demurrer is not sustainable on this basis.

Next Defendants contend that the duration of the detention was not long enough to support a cause of action for false imprisonment. One element of the tort of false imprisonment is that the confinement must continue “for an appreciable period of time.” (City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810; Fermino v. Fedco, Inc., (1994) 7 Cal. 4th 701, 716.) Defendants argue Plaintiff has not alleged that the confinement was for “an appreciable length of time.” (Dem., p. 8:2.) Defendants assert an appreciable period of time “may be as little as 15 minutes.” (Id. at p. 8:7.) Defendants reason Plaintiff only alleges he was restrained for “several minutes,” which is less than fifteen minutes. Defendants’ argument relies upon Alterauge v. Los Angeles Turf Club (1950) 97 Cal.App.2d 735, 736-7 (“Alterauge”) to establish fifteen minutes as the minimum “appreciable period.”

In Alterauge the plaintiff was taken from his car and brought into a private club by defendants, employees of a private security company. (Alterauge, supra, 97 Cal.App.2d at 736.) The defendants detained the plaintiff supposedly to investigate whether plaintiff was involved in bookmaking. (Alterauge, supra, 97 Cal.App.2d at 736.) Defendants claimed they had a duty to police the grounds, and could detain the plaintiff temporarily to investigate his conduct and carry out that duty. (Id. at 736-7.) He was held for “about 15 minutes” during which he was questioned and searched, before being released and ordered not to return. (Id at 736.) The facts showed the defendants had previous interactions with the plaintiff and knew everything they could deduce from questioning him well before they removed him from the car. (Ibid.) The court’s ruling was based upon the lack of a good faith basis for the confinement, not its duration. (See Ibid.) In sum, Alterauge can reasonably be cited for the proposition that fifteen minutes is “an appreciable period of time,” but it contains no indication fifteen minutes is a floor, or that a shorter detention would fail to meet this element. Accordingly, Defendants argument that Plaintiff has not alleged an appreciable period of time is insufficiently supported. The demurrer is not sustainable on this basis.

Finally, Defendants assert “Plaintiff has not stated a claim for negligent hiring, supervision and retention by the FORTY NINERS because they did not hire the specific security guards involved in the incident.” (Dem., p. 8:11-12.) Defendants again rely upon paragraphs two and six of the FAC. These paragraphs do not state that Elite hired, supervised, or retained all the security guards involved, or that Defendants did not hire, supervise, or retain any of them. Thus, Defendants’ third argument fails for the same reasons as their first

Accordingly, the demurrer to the first, second, third, fifth, and sixth causes of action on the ground of failure to state sufficient facts is OVERRULED.