Daniel Graham v. The James Joyce, Inc., et al.
Case No: 18CV02771
Hearing Date: Mon Oct 01, 2018 9:30

Nature of Proceedings: Demurrer/Motion to Strike

Daniel A. Graham v. The James Joyce, Inc., et al., #18CV02771, Judge Sterne

Hearing Date: October 1, 2018

Matter: Demurrer

Motion to Strike Portions of Plaintiff’s Complaint

Attorneys:

For Plaintiff: Jay Valentine (Valentine & Reese)

For Defendant James Joyce: Matthew W. Balmuth (Mandell, Damon & Assoc. – Woodland Hills)

Tentative Rulings:

1. The court overrules the demmurrer of defendant The James Joyce, Inc. to plaintiff Daniel A. Graham’s complaint.

2. The court grants, in part, the motion ofdefendant The James Joyce, Inc. to strike portions of plaintiff Daniel A. Graham’s complaint. The court orders stricken, without leave to amend, ¶¶29, 34, 39, 45, and 49 of the complaint, as to defendant The James Joyce, Inc., only. The court denies the motion in all other respects.

Complaint: This action arises out of injuries plaintiff Daniel A. Graham sustained on the premises of defendant The James Joyce, Inc. (“James Joyce”). James Joyce operates an eponymous bar located at 513 State Street in Santa Barbara. Plaintiff Graham alleges:

On October 19, 2017, at approximately 11:24 p.m., Graham exited the James Joyce bar. [Complaint ¶8] Defendants Lazer Clovis Friedman, Chase Robert Gauthier, and Christoph Albert Anderson were employees working for James Joyce at the premises that evening. [¶¶2, 3, 4, 9] Anderson was head of security at James Joyce at the time. [¶10] As Graham left the bar, Freidman, Gauthier, and Anderson followed him. [¶11] As Graham was backing out of the parking lot, Freidman, Gauthier, and Anderson surrounded his vehicle; pulled him out of the vehicle; and began kneeing, kicking, hitting, and slamming him against the ground. [¶14] When police arrived, they smelled alcohol on Anderson’s person. [¶¶17, 18] Graham suffered multiple injuries. [¶20] Police tested Graham and no alcohol was found in his system. [¶21] Friedman, Gauthier, and Anderson were employees of James Joyce and were acting during the course of their employment at the time of the assault. [¶¶30, 35, 40, 46, 50]

The causes of action in the complaint are 1) battery, 2) assault, 3) false imprisonment, 4) negligence, and 5) intentional infliction of emotional distress.

Demurrer: Defendant James Joyce demurs to all causes of action in the complaint on the grounds that Graham fails to state facts sufficient to constitute the causes of action and for uncertainty. Graham opposes the demurrer. (James Joyce asks the court to disregard the opposition because it was filed and served one day late. The court does not condone late filing of pleadings. However, James Joyce has been able to fully reply to the opposition. The court prefers to address the merits of the demurrer and, therefore, the court will not disregard the opposition.)

James Joyce claims the complaint does not state a claim against it and is uncertain because police reports attached to the complaint indicate Gauthier was not working at the time and, therefore, was not acting within the scope of his employment. Further, Graham has not alleged that any of the individuals were acting within the scope of their employment, only during the “course” of their employment. The police report also contains statements indicating the incident followed Anderson and Graham’s dispute over Graham’s girlfriend.

The court’s only task in ruling on a demurrer is to determine whether the complaint states a cause of action. (Moore v. Regents of University of California, 51 Cal.3d 120, 125 (1990).) The court assumes the truth of allegations in the complaint that have been properly pleaded and give it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th 553, 558 (1998).) The court assumes the truth of the reasonable inferences that may be drawn from the properly pleaded material facts. (Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005).) However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact. (People ex rel. Lungren v. Superior Court, 14 Cal.4th 294, 300–301 (1996).)

James Joyce relies on the police reports and contends that they contradict the allegations of the complaint. James Joyce says that the court must disregard allegations in the complaint that are not consistent with the police report.

“When a written instrument which is the foundation of a cause of action or defense is attached to a pleading as an exhibit and incorporated into it by proper reference, the court may, upon demurrer, examine the exhibit and treat the pleader’s allegations of its legal effect as surplusage.” (Weitzenkorn v. Lesser, 40 Cal.2d 778, 785-786 (1953) [internal quotations and citation omitted].) This is consistent with the cases on which James Joyce relies. In Moran v. Prime Healthcare Mgmt., Inc., 3 Cal.App.5th 1131, 1145 (2016), the court held that the terms of the contract took precedence over allegations in the complaint because the plaintiff relied on the terms of the contract.

Here, Graham has attached the police reports as illustrative of the conduct alleged in the complaint, not as the foundation of the causes of action. The foundation for the causes of action is the incident, not after-the-fact interviews about the incident. Therefore, statements in the police reports, some of which are self-serving, do not take precedence over the allegations in the complaint.

“[A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal.4th 291, 296 (1995).) Graham has alleged that the individual defendants were acting in the “course” of their employment; he does not allege they were acting in the “scope” of their employment. In addition, James Joyce points out police reports indicating that Graham said Anderson stated that Graham should stay away from “Bri,” who was Graham’s girlfriend. When a tort is committed as the result of a personal quarrel, the employer need not be liable. (Golden West Broadcasters, Inc. v. Superior Court, 114 Cal.App.3d 947, 957 (1981).”

While James Joyce is content to rely on police reports in some respects, it ignores them in others. Defendant Anderson said he was working head of security when a bar tender told him to remove Graham from the bar. Anderson told officers that Graham is not welcome at bar due to prior female harassment issues. Anderson bounced Graham’s head on the ground in an attempt to hold him down. This information incorporated into the complaint is sufficient to allege that Anderson harmed Graham in the scope of his employment with James Joyce. Also, defendant Friedman was working as security at the front entrance of bar when he accompanied Anderson in the removal of Graham from the bar.

In the police reports, Gauthier is reported to have said he was not on shift but was present when he saw his coworkers Anderson and Friedman escorting Graham out of the bar and assisted them. While this may indicate that Gauthier was not acting in the scope of his employment, his acts are not the only acts that Graham alleges make James Joyce liable. “A demurrer does not lie to a portion of a cause of action.” (PH II, Inc. v. Superior Court, 33 Cal.App.4th 1680, 1682 (1995).) In any event, the statements Gauthier made to police about his status are not statements the court must accept as true on demurrer.

The inclusion of allegations lumping the conduct of the three individual defendants together do not render the complaint uncertain. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly’s of California, Inc., 14 Cal.App.4th 612, 616 (1993). There are sufficient allegations of employees acting in the scope of their employment to give James Joyce adequate notice to defend the case.

The court overrules defendant The James Joyce, Inc.’s demurrer to plaintiff Daniel A. Graham’s complaint.

Motion to Strike: Defendant James Joyce moves to strike portions of Graham’s complaint. Graham has not filed an opposition to the motion.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP § 436.) “A motion to strike, like a demurrer, challenges the legal sufficiency of the complaint’s allegations, which are assumed to be true.” (Blakemore v. Superior Court, 129 Cal.App.4th 36, 53 (2005).)

1. Course/Scope of Employment: James Joyce moves to strike the five paragraphs in which Graham alleges that Friedman, Gauthier, and Anderson were employees of James Joyce and were acting during the course of their employment at the time of the assault. [¶¶30, 35, 40, 46, 50] James Joyce contends that Graham didn’t allege the individual employees were acting in the scope of their employment, police reports indicate they were not acting in the scope of their employment, and police reports indicate Gauthier was not working at the time of the assault.

As discussed above, police reports do not contradict the allegations and, even where they do, the court does not accept contradictory statements made to the officers as true. The court will not order those paragraphs stricken.

2. Punitive Damages: “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court, 67 Cal.App.4th 1253, 1255 (1998) [citations omitted].) “[U]nder the respondeat superior doctrine, the employer is not liable for punitive damages absent fault or misconduct on the employer’s part.” (CRST, Inc. v. Superior Court, 11 Cal.App.5th 1255, 1261 (2017).)

Civil Code § 3294(b) provides: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, 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 the 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.”

In ¶¶29, 34, 39, 45, and 49, Graham alleges: “Defendants Friedman, Gauthier, and Anderson’s actions were done knowingly, wilfully, and (sic) malicious intent, and Plaintiff is entitled to punitive damages in an amount to be determined by proof at trial.” There are no allegations that an officer, director, or managing agent of James Joyce employed the individual defendants with advance knowledge of their unfitness and with conscious disregard of others’ rights and safety; or that James Joyce’s officer, director, or managing agent authorized or ratified the conduct. Therefore, the court will order these paragraphs stricken as to defendant James Joyce only.

3. Leave to Amend: The burden is on the plaintiff … to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse, 54 Cal.3d 723, 742 (1991).) “It is not up to the judge to figure that out.” (Lee v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 848, 854 (2003).) The plaintiff has the burden “to show what facts he or she could plead to cure the existing defects in the complaint.” (McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784, 792 (2008).)

Graham has not responded to the motion to strike. Therefore, he has made no attempt to demonstrate how he might amend the complaint to state a claim for punitive damages against James Joyce.

4. Order: The court grants, in part, defendant The James Joyce, Inc.’s motion to strike portions of plaintiff Daniel A. Graham’s complaint. The court orders stricken, without leave to amend, ¶¶29, 34, 39, 45, and 49, as to defendant The James Joyce, Inc., only. The court denies the motion in all other respects.