Case Number: 18STCV02009 Hearing Date: March 25, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CHARMAINE HEADSPETH,

Plaintiff,

vs.

STAR HOOKAH HOLLYWOOD, INC., et al.,

Defendant(s).

Case No.: 18STCV02009

[TENTATIVE] ORDER SUSTAINING DEMURRER; GRANTING MOTION TO STRIKE; DENYING LEAVE TO AMEND

Dept. 3

1:30 p.m.

March 25, 2019

I. Background Facts

Plaintiff Charmaine Headspeath (“Plaintiff”) alleges that on April 24, 2017, she was injured at Defendant Star Hookah Lounge, Inc.’s (“Defendant”) business premises located at 6430 Hollywood Boulevard, Los Angeles, CA. (“Subject Premises.) Plaintiff claims that she sustained injuries after a hot coal fell on her. On October 23, 2018, Plaintiff filed a complaint against Defendant asserting causes of action for: (1) Negligence; (2) Intentional Infliction of Emotional Distress; (3) Premises Liability; (4) Strict Liability for Ultrahazardous Activity; and (5) Punitive Damages.

On 1/10/19, the Court heard a demurrer to Plaintiff’s causes of action for IIED, strict liability, and punitive damages. The Court sustained the demurrer to the IIED cause of action with leave to amend, overruled the demurrer to the strict liability cause of action, and sustained the demurrer to the punitive damages cause of action without leave to amend.

The Court also heard a motion to strike Plaintiff’s prayer for punitive damages and prayer for attorneys’ fees. The Court granted the motion to strike with leave to amend.

On 1/30/19, Plaintiff filed her operative First Amended Complaint. The FAC includes causes of action for negligence, premises liability, IIED, and strict liability. The FAC includes a prayer for punitive damages, but does not include a prayer for attorneys’ fees. At this time, Defendant demurs to the cause of action for IIED. Defendant also moves to strike the prayer for punitive damages and related allegations.

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

III. Discussion

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See CCP § 430.41.) The Court notes that Defendant has fulfilled the meet and confer requirement prior to filing this demurrer.

b. Second Cause of Action: Intentional Infliction of Emotional Distress

Defendant contends that Plaintiff’s claim for IIED fails in that the Complaint does not sufficiently allege extreme or outrageous conduct. Pursuant to Hughes v. Pair, a cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.

Plaintiff, in response to the Court’s ruling on Defendant’s demurrer to the original complaint, added several pages of new allegations. Specifically, Plaintiff added ¶138(a) through (y). While these paragraphs are numerous in nature and span multiple pages of the FAC, in essence Plaintiff added four allegations. She added allegations that Defendant’s employees had, on information and belief, dropped hot coals on others prior to dropping them on Plaintiff. She added allegations that a $10 screen on the hookah would have prevented the accident. She added allegations that Defendant’s officers, directors, and/or managing agents knew of the prior incidents and chose not to purchase the $10 screen. She also added allegations that Defendant was in breach of some non-specified safety, building code, smoke, ventilation, disposal, hazardous waste removal, and/or anti-fire requirements.

The Court finds the allegations of the FAC continue to fail to rise to the level of “outrageous” as defined by Hudges, supra. The demurrer is therefore sustained. Because Plaintiff was previously granted leave to amend, and because it does not appear Plaintiff could add additional facts to her FAC if given leave to do so, leave to amend is denied.

c. Motion to Strike

Defendant moves to strike Plaintiff’s prayer for punitive damages and related allegations from the complaint. The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike either (1) any “irrelevant, false or improper matter inserted in any pleading”; or (2) any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” CCP §436. A motion to strike punitive damages allegations, specifically, may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. See e.g., Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . . .” (Civil Code § 3294(a).) “Malice” is defined as conduct intended to cause injury to a person, or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. Turman, supra at 63. “Oppression” is defined as despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) Lastly, “Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deceive a person of property, rights or otherwise cause injury. (Ibid.)

“‘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. They are “typically awarded for intentional torts” while “cases involving unintentional torts are far fewer.” Id. at 1212.

Pursuant to Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872, specific factual allegations are required to support a claim for punitive damages. Thus, Plaintiff is free to plead the legal conclusions that support the claim for punitive damages. The claim will only be sustained, however, if Plaintiff also pleads facts to support that conclusion. In this case, Plaintiff alleges there were several prior similar incidents, Defendant’s officers, directors, and/or managing agents knew of the prior similar incidents, Defendant chose not to purchase a $10 cover that would have prevented the accident, and Defendant was in violation of various non-specified regulations. Plaintiff fails, however, to allege any facts about the prior incidents. She fails to allege any facts to support her conclusion that Defendant made an affirmative choice not to purchase the $10 cover. She fails to allege facts to support her conclusion that Defendant’s officers, directors, and/or managing agents were involved in decisions relating to dropping hot coals. She also fails to allege any specific regulation Defendant violated.

The motion to strike is granted without leave to amend. The ruling is without prejudice to Plaintiff’s right to bring a motion for leave to amend if, during the course of discovery, she learns of facts that would support her allegations.

Defendant is ordered to give notice.