Case Name: Michelle Torres v. Willow Den, et al.
Case No.: 19CV345540

I. Background

Michelle Torres (“Plaintiff”) alleges Antonio Romero Abundiz (“Abundiz”) violently raped her outside of a self-storage facility near the bar where she had been drinking with friends, namely the Willow Den. She alleges she has no memory of what happened because Willow Den’s bartender, defendant Justin Mackiewicz (“Mackiewicz”), served her an alcoholic concoction that caused her to become extremely intoxicated despite her limited consumption of other alcoholic beverages prior to arriving at the Willow Den. After consuming Mackiewicz’s concoction, Plaintiff’s friend felt weird and Plaintiff stated they should go home. According to Plaintiff, security footage from the area shows her leaving Willow Den with Abundiz, rather than her friend, and stumbling with him to the self-storage facility. Additional footage shows Abundiz leaving the facility alone roughly twenty minutes later. Plaintiff next awoke outside of the self-storage facility with missing and disheveled clothing, swollen cheeks, bruised eyelids, a torn rotator cuff, scrapes and bruises, a bloody lip, and missing teeth. As a result of Abundiz’s attack, Plaintiff now suffers from a number of psychological ailments as well.

Plaintiff asserts causes of action against Abundiz for sexual battery, gender violence, battery, assault, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiff asserts causes of action against Mackiewicz and his employer Willow Den (collectively, “Defendants”) for: battery (against Mackiewicz only); negligent supervision (against Willow Den); premises liability (against Willow Den); intentional infliction of emotional distress (against Defendants); and negligent infliction of emotional distress (against Defendants).

Currently before the Court its Defendants’ motion to strike portions of the complaint and demurrer to the causes of action asserted against them, namely the fourth, sixth, seventh, eighth, and ninth causes of action.

II. Preliminary Procedural Matters

Plaintiff argues the Court should summarily deny the motion to strike and overrule the demurrer because they are untimely. She additionally points out that Defendants did not file any meet and confer declaration.

A demurrer and a motion to strike must be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 430.41, subd. (a)(3), 435.5, subd. (a)(3).) Here, it is true that Defendants failed to file the required declarations with either their demurrer or motion to strike. That said, a court cannot overrule a demurrer or deny a motion to strike based on the inadequacy of meet and confer efforts. (Code Civ. Proc., §§ 430.41, subd. (a)(4), 435.5, subd. (a)(4).) And, despite the absence of declarations from the materials filed by Defendants, Plaintiff presents evidence with her opposition showing the parties exchanged some correspondence about the pleading. Consequently, the Court will not summarily deny the motion or overrule the demurrer on this basis. Defendants are admonished that they must comply with the Code of Civil Procedure and the California Rules of Court going forward.

Next, a demurrer and a motion to strike must be filed, if at all, within 30 days of service of the complaint. (Code Civ. Proc., §§ 430.40, subd. (a), 435, subd. (b)(1).) Here, Plaintiff personally served Willow Den on May 21 and Mackiewicz on May 25. Yet, Defendants did not serve their demurrer and motion to strike until August 2 and filed these matters later still on August 30. And, nothing in the record before the Court reflects a stipulation or court order extended their deadline. The demurrer and motion to strike are, thus, untimely.

A court has discretion to consider an untimely pleading challenge. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Even when a plaintiff objects to the consideration of an untimely pleading challenge, a court may consider the merits of the challenge when the delay does not impact the parties’ substantial rights. (Ibid.) If a plaintiff neglects to seek the entry of default and a default judgment and does not otherwise articulate how the delay is prejudicial, a court is justified in finding there is no impact on the parties’ substantial rights and considering the merits of the challenge in its discretion. (Ibid.)

Here, Plaintiff does not attempt to establish the delay was prejudicial. And, she did not seek entry of default and a default judgment during the intervening months. Thus, the Court finds Defendants’ delay does not affect the parties’ substantial rights and considers the merits of the demurrer and motion to strike. Defendants are again admonished of their obligation to comply with the law in this proceeding.

III. Motion to Strike

Defendants move to strike substantive allegations from the complaint. In the memorandum supporting Defendants’ demurrer, they state the Court should first evaluate their motion to strike because it impacts the demurrer. But in the memorandum supporting Defendants’ motion to strike, they state allegations should be stricken because Plaintiff’s claims are not properly pleaded. In other words, Defendants argue the Court should sustain the demurrer because, upon striking certain facts, the facts pleaded are insufficient while simultaneously arguing the facts should be stricken because the claims are not properly pleaded. This reasoning is circular. And so, the allegations will not be stricken on this basis. Defendants do not otherwise provide an explanation or legal analysis to support the conclusion that the allegations should be stricken as irrelevant or improper. (See Code Civ. Proc., § 436, subd. (a).) Additionally, although not especially clear, to the extent Defendants intended to use their motion to challenge whether the facts pleaded are sufficient to state a claim, they employ the wrong procedural vehicle; that issue may be raised by demurrer not motion to strike. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528–29.) For all of these reasons, Defendants’ motion to strike is DENIED.

IV. Demurrer

Defendants demur to the fourth, sixth, seventh, eighth, and ninth causes of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e)–(f).)

In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) A demurrer on the ground of failure to state facts sufficient to constitute a cause of action tests whether the plaintiff alleges each ultimate fact essential to the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e); C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 873.)

In contrast, a demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.) It tests whether a pleading is ambiguous, uncertain, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.)

Defendants do not provide reasoning or legal analysis to support the conclusion that the complaint or any cause of action therein is ambiguous, uncertain, or unintelligible. It is not otherwise obvious to the Court that the pleading is so incomprehensible they cannot reasonably respond. Consequently, Defendants’ demurrer on the ground of uncertainty is OVERRULED.

The Court considers below whether Plaintiff alleges facts sufficient to state causes of action for battery, negligent supervision, premises liability, and intentional or negligent infliction of emotional distress.

A. Fourth Cause of Action

Defendants argue the Court should sustain the demurrer to the fourth cause of action for battery because the complaint “doe[s] not effective [sic.] give any facts that give rise to a cause of action for [b]attery” and is “not consistent with a determination that [Mackiewicz] acted with willful disregard of…Plaintiff’s rights.” (Mem. of Pts. & Auth. at p. 6:1–9.) It is insufficient to simply assert a point or conclusion without providing any legal authority or analysis in support. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; Cal. Rules of Court, rule 3.1113(b); see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–85.) Although Defendants cite one case—Ashcraft v. King (1991) 228 Cal.App.3d 604—it is not a pleading case. And, Defendants do not otherwise provide any analysis of the pleading standard for battery or the facts alleged in the fourth cause of action to support their position. To be sure, while Plaintiff does allege facts about Mackiewicz’s intent (Compl., ¶ 52), Defendants do not explain why these allegations are insufficient. Accordingly, Defendants fail to substantiate their demurrer to the fourth cause of action. The demurrer is OVERRULED.

B. Sixth Cause of Action

Defendants argue the Court should sustain the demurrer to the sixth cause of action for negligent supervision, but their supporting analysis is disjointed. Defendants cite a case reviewing an order granting a motion for summary judgment for the proposition that a plaintiff must show a supervisor had knowledge of a subordinate’s propensity for misconduct to establish a claim for negligent supervision. (Mem. of Pts. & Auth. at p. 6:20–22, citing Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889.) But in support, Defendants do not address the rule they cite; instead, they assert in a conclusory manner that no “specific allegation of any wrong” is alleged. (Mem. of Pts. & Auth. at p. 6:21–22.) Thus, Defendants do not clearly articulate or substantiate an argument that justifies sustaining the demurrer.

Knowledge of a subordinate’s propensity for misconduct is not necessarily an independent element of a negligent supervision claim. (See Z.V., supra, 238 Cal.App.4th at pp. 902–03.) Rather, such knowledge is ordinarily material to the question of whether misconduct is foreseeable for the purpose of analyzing whether there is a legal duty of care. (Ibid.; see also C.A., supra, 53 Cal.4th at pp. 870–71.) And so, Defendants do not address the law they cite in its proper context. Additionally, Plaintiff does allege facts about Willow Den’s misconduct, including that it knew Mackiewicz had given customers odd concoctions with unknown ingredients before and that it was foreseeable he would continue to engage in this misconduct. (Compl., ¶¶ 60–64.) Thus, notwithstanding Defendants’ insufficient presentation, their argument lacks merit because Plaintiff does allege facts about Willow Den’s knowledge.

Based on the foregoing, the demurrer to the sixth cause of action is OVERRULED.

C. Seventh Cause of Action

Defendants argue the Court should sustain the demurrer to the seventh cause of action for premises liability, a form of negligence, because Plaintiff does not allege Willow Den breached any duty and relies solely on “accusatory accusations without specifying what was any wrongful or illegal act….” (Mem. of Pts. & Auth. at p. 8:11–13.) Plaintiff does allege Willow Den breached its duty to protect her as a patron. (Compl., ¶¶ 72–74.) Defendants do not otherwise provide any explanation or legal analysis to support their position. Consequently, they do not substantiate their demurrer to the seventh cause of action. The demurrer is OVERRULED.

D. Eighth and Ninth Causes of Action

With respect to the eighth cause of action for intentional infliction of emotional distress, Defendants argue Plaintiff fails to specify the outrageous conduct upon which her claim is based and allege they had the requisite intent. But Plaintiff does identify and allege Defendants’ conduct leading up to the attack was extreme and outrageous and that they acted deliberately and with a knowing disregard for her safety. (Compl., ¶¶ 77–78.) Defendants do not otherwise cite authority establishing the allegations are insufficient as a matter of law. Thus, they do not substantiate their demurrer to the eighth cause of action.

Defendants argue the demurrer to the ninth cause of action for negligent infliction of emotional distress is sustainable for the same reasons articulated with respect to the sixth cause of action, which they identify as the premises liability claim. They state they owed no duty to Plaintiff. But the sixth cause of action is for negligent supervision, not premises liability. And, Defendants did not establish no duty was owed with respect to either the sixth or seventh causes of action. With respect to the seventh cause for premises liability, Defendants raised the element of breach. Indeed, they appeared to concede Willow Den owed Plaintiff a duty as a landowner. As for the sixth cause of action for negligent supervision, Defendants cited a rule material to the duty analysis but did not actually engage in such analysis or otherwise cite the rule in a manner reflecting they understood the context for the cited rule. Ultimately, Defendants do not provide sufficient analysis at any point in their supporting memorandum, particularly with respect to Mackiewicz. Thus, Defendants do not establish they did not owe Plaintiff a duty of care.

Defendants otherwise state without support that a “reasonable person would not believe a customer would suffer emotional distress as a result of an employee serving them with an alcoholic beverage while merely acting in the scope of his employment and could not possibly cause an individual to suffer harm thereby.” (Mem. of Pts. & Auth. at p. 9:17–20.) It is unclear what legal or factual basis exists for this argument or what conclusion Defendants intended the Court to draw from this argument. And so, this second point is not well-taken. The demurrer to the ninth cause of action is also unsubstantiated.

In conclusion, the demurrer to the eighth and ninth causes of action is OVERRULED.