Case Number: BC641048 Hearing Date: April 03, 2018 Dept: 92

JOSHUA L. HERRERA,

Plaintiff(s),

vs.

GAIL CAPPIER, et al.,

Defendant(s).

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Case No.: BC641048

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS WITHOUT LEAVE TO AMEND

Dept. 92

1:30 p.m.

April 3, 2018

1. Allegations of the Complaint

Plaintiff, Joshua L. Herrera filed this action against Defendants, Chad Carrier, Gail Carrier, and Hunter Silva for damages arising out of an assault and battery that occurred at a party. Plaintiff’s operative First Amended Complaint includes a cause of action for “intentional tort” against the Carrier Defendants. The substantive allegations of the cause of action are as follows:

Chad Carrier and Gail Carrier owned, owned, managed and controlled a single family dwelling at 521 Via Del Monte, Palos Verdes Estates, CA 90274, wherein the following occurred, took place, and/or at which said defendants: hosted a gathering at which said defendants furnished alcoholic drinks, charged persons a fee for entry, knowingly allowed minors entry and to consume alcohol; allowed more persons to the gathering than was safe or reasonable given the circumstances that included but were not limited that minors were consuming alcoholic beverages, failed to supervise the gathering, failed to stop minors from consuming alcohol, allowed minors from a neighboring and ‘opposing’ school district to entry and consume alcohol (the ‘Gathering’), allowed Plaintiff to enter and accepted money from Plaintiff for entry.

Said Defendants allowed persons, including minors from neighboring ‘opposing’ schools to attend the gathering and to consume alcohol; Defendants failed and refused to oversee the gathering, but rather instead held the gathering solely to make money from, among other things, the fees charged for entry to the gathering and, on information and belief, furnished alcohol to minors and/or allowing minors to consume alcohol during the gathering.

It was reasonably foreseeable and indeed, almost a certainty, that intoxicated minors would hit or punch other persons at the gathering and accordingly in failing and refusing to oversee the gathering, in furnishing alcohol to minors, said Defendants all-but insisted and assured that Plaintiff would be battered and punched and Plaintiff was, in fact, battered and punched as a direct and proximate result of the intentional and willful acts of said Defendants.

2. Motion for Judgment on the Pleadings

Meet and Confer

Defense Counsel includes a CCP §439 meet and confer declaration with the motion. The Court is satisfied with Counsel’s efforts to meet and confer prior to filing the motion.

Opposition

Any opposition to the motion was due on or before 3/20/18. The Court has not received opposition to the motion.

Analysis

The Carrier Defendants do not challenge the first cause of action for negligence asserted against them. They challenge only the third cause of action for intentional tort asserted against them.

Defendants correctly note that the third cause of action against them, while stated as “intentional tort,” appears to be for the tort of battery. The elements of battery include:

1. That Defendants touched Plaintiff or caused Plaintiff to be touched with the intent to harm or offend him;

2. That Plaintiff did not consent to the touching;

3. That Plaintiff was harmed or offended by Defendants’ conduct; and

4. That a reasonable person in Plaintiff’s situation would have been offended by the touching.

CACI 1300.

Additionally, CACI 1320 defines “intent,” in the context of battery, as follows:

Defendants acted intentionally if they intended to commit a battery or if they were substantially certain that the battery would result from their conduct.

Plaintiff’s complaint fails to allege facts showing that Defendants touched Plaintiff or caused Plaintiff to be touched. Plaintiff’s complaint alleges it was “virtually certain” that a fight would break out, but this is not the same thing as touching Plaintiff or causing Plaintiff to be touched. Additionally, the Court is not satisfied that the FAC alleges facts showing that Defendants engaged in conduct they should have been “substantially certain” would result in Plaintiff being battered. The motion is therefore granted. In light of the lack of opposition to the motion, leave to amend is denied.