Case Number: BC508561 Hearing Date: April 18, 2014 Dept: B

Demurrer and Motion to Strike

The Plaintiff was a patron in the Defendant, Havana House. The Complaint alleges that individual Defendants, Gilardo Lopez, Donald Bernard, and Jose Escandon, while acting within the course and scope of their employment, caused physical injuries to the Plaintiff when they choked, grabbed, and threw the Plaintiff to the ground. The Defendants then caused the Plaintiff to be falsely arrested and they engaged in the malicious prosecution of a claim against the Plaintiff by encouraging the Alhambra Police Department to pursue false charges against the Plaintiff and to engage in an unreasonable search of the Plaintiff.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
1) Negligence
2) Assault and Battery
3) Intentional Infliction of Emotional Distress
4) False Arrest and False Imprisonment
5) Violation of Bane Act and other Civil Rights
6) Malicious Prosecution

[N.B., I placed the First Amended Complaint with the papers to make it easier to analyze.]

RELIEF REQUESTED:
1. Demurrer to 4th cause of action in First Amended Complaint.
2. Strike portions that support request for punitive damages.

ANALYSIS:

No trial has been set. The case management conference is set for the same date as this hearing.

This hearing concerns the Defendants’ demurrer to the First Amended Complaint on the ground that it lacks sufficient facts and is barred by the statute of limitations.

An initial issue is that the Defendants have filed two demurrers. The demurrer filed on June 20, 2013 is to the “Third Amended Complaint”. Since the operative pleading is the First Amended Complaint, this demurrer is directed at a non-existent pleading. However, a review of the demurrer reveals that it was directed at the original Complaint. The Defendants argue on page 1, at lines 8 to 15, that the Plaintiff alleged that the incident occurred on May 20, 2010. This was pleaded in the original Complaint. However, in the First Amended Complaint, the Plaintiff alleged in paragraph 10 that the incident occurred on May 20, 2011. Since the Defendants’ demurrer that was filed on June 20, 2013 was directed at the original Complaint, it became moot when the Plaintiff filed a First Amended Complaint on August 27, 2013.

Accordingly, the Court takes the demurrer to the “Third Amended Complaint” off calendar as moot.

The Defendants then filed a demurrer on October 16, 2013 to the First Amended Complaint. It is directed only at the fourth cause of action and it identifies the date of May 20, 2011 for the incident. This is the demurrer currently before the Court.

1. Demurrer

The Defendants argue that the statute of limitations bars the Plaintiff’s fourth cause of action for false arrest. When the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300. Under CCP section 340, the time period to bring the fourth cause of action for false arrest and false imprisonment is one year.

The Plaintiff alleges in paragraph 10 that the incident occurred on May 20, 2011. Under the applicable statutes of limitation, the Plaintiff had until May 20, 2012 to commence an action based on the false arrest and false imprisonment.

A review of the Court file reveals that the Plaintiff commenced this action on May 19, 2013. This indicates that the Plaintiff’s fourth cause of action for false arrest and false imprisonment is barred by the statute of limitations.

In his opposition, the Plaintiff claims that the statute of limitations was tolled under the doctrine of equitable tolling. Equitable tolling stops the statute of limitations from expiring when a plaintiff seeks remedies in another forum other than state court. Mojica v. 4311 Wilshire, LLC (2005) 131 Cal. App. 4th 1069, 1073. Equitable tolling has the following three elements:

1) timely notice to the defendant of the claim within the statutory period; ordinarily, such notice occurs when the plaintiff files in the other forum;
2) lack of prejudice to the defendant in gathering and preserving evidence for its defense; and
3) the plaintiff’s reasonableness and good faith in pursuing the claim in the other forum.
Id.

There are no pleadings in the First Amended Complaint that demonstrate that the doctrine of equitable tolling applies. The Plaintiff is attempting to use the criminal case brought against him to support his claim of equitable tolling. However, the Plaintiff did not plead that he provided timely notice to the Defendants of his claim within one year from the incident, that there is no prejudice to the Defendants, or that the Plaintiff acted reasonably and in good faith in pursuing the claim in the other forum. This is insufficient to demonstrate that the doctrine of equitable tolling applies.

Therefore, the Court sustains the demurrer to the fourth cause of action. Since the arguments in his opposition paper offers a method for correcting the defect by amendment, the Court grants 10 days leave to amend.

2. Motion to Strike

The Defendants request that the Court strike the portions of the First Amended Complaint in which the Plaintiff seeks punitive damages. CCP section 436 permits the Court to strike any portions of a pleading that are improper. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.

Under Civil Code section 3294, a plaintiff may recover an award of punitive damages on a showing that the defendant acted with malice, oppression, or fraud. Civil Code section 3294 defines these terms in the following manner. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

The Defendants made no effort to analyze the pleadings in support of their motion. Instead, the Defendants provided pages of legal citations and then concluded that the Plaintiff failed to allege any facts to demonstrate oppression, fraud, or malice.

Accordingly, the Court denies the Defendants’ motion because they made no effort to support it with any analysis of the pleadings.

Further, a review of the First Amended Complaint reveals that the Plaintiff is seeking an award of punitive damages in the following causes of action:

2) Assault and Battery;
3) Intentional Infliction of Emotional Distress;
4) False Arrest and False Imprisonment;
5) Violation of Bane Act and other Civil Rights; and
6) Malicious Prosecution

Each of these causes of action includes allegations that the Defendants engaged in conduct with the intent to injury the Plaintiff, which falls within the definition of “malice” under Civil Code section 3294. For example, the Plaintiff alleges in paragraph 10 that the individual Defendants caused physical injuries to the Plaintiff when they choked, grabbed, and threw him to the ground. Further, the Plaintiff alleges that the Defendants caused the Plaintiff to be falsely arrest for the sole purpose of harassing the Plaintiff and to cause him physical and emotional pain. In paragraph 13, the Plaintiff alleges that the Defendants used the false arrest to cover up their own wrongdoing of battering the Plaintiff. These allegations are sufficient to support a request for punitive damages because they demonstrate that the Defendants engaged in conduct intended to cause injury to the Plaintiff.

Therefore, the Court denies the Defendants’ motion to strike.