Case Number: BC724108 Hearing Date: December 17, 2019 Dept: S27

INTRODUCTION

Defendant Top Watch Security (“Top Watch”) demurs to the 3rd and 5th causes of action in Plaintiff Reyna Amezcua’s first amended complaint.

Defendant Hashim Mohammad demurs to the entirety of the pleading:

Complaint:

1. Battery

2. Assault

3. Intentional Infliction of Emotional Distress (“IIED”)

4. Negligence

5. Premises Liability

Defendants concurrently moves to strike the prayer for punitive damages and associated allegations.

ALLEGATIONS

The incident giving rise to this litigation took place on July 21, 2018 at McDonald’s Store #640 (Voluntarily dismissed as a Defendant). Plaintiff alleges she was a guest or patron of the restaurant, and she was “sitting and using her mobile phone and not disturbing or disrupting traffic or the path of pedestrians.” (Paragraph 16)

Top Watch was retained by McDonalds to provide security personnel. The court infers Mohammad was a Top Watch employee on the premises to provide security. (Paragraph 23)

Plaintiff alleges she was “attacked and beaten” despite her allegation that her “actions or inactions did not warrant such aggression and violence.” (Paragraph 18) Plaintiff suffered injuries requiring surgery. (Paragraph 19)

Although Plaintiff appears to allege a conspiracy between the named Defendants, she voluntarily dismissed McDonald’s Corporation, MCRU, Inc. and McDonald’s Store #640 on November 15, 2019.

DISCUSSION

Hashim Al-Balad Mohammad

This Defendant attempts to insert facts outside the complaint to advance an argument which is inappropriate for demurrer.

He cites Penal Code §837:

“A private person may arrest another:

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

There are no facts before the court to support application of the statute. There is no allegation by Plaintiff that “she was committing aggravate [sic] trespass after multiple requests were made for her to vacate the premises” (MP 5:16 – 17) nor that “she was in possession of narcotics . . . within a few feet of a children’s playground.” (MP: 5:17 – 18) There are no facts that Defendant “lawfully attempted to arrest plaintiff” pursuant to Penal Code §837.

Whether Mr. Mohammad was justified in employing the level of force alleged is an inherently factual issue which cannot be resolved on demurrer, particularly where the face of the complaint discloses no such defense.

The argument contravenes the basic rules on demurrer that the facts pled are deemed true unless superseded by exhibits to the complaint or judicially noticeable demurrer. The court cannot make a factual finding of “justification.”

The demurrer is overruled.

IIED

Defendant argue that the element of extreme and outrageous conduct is lacking.

Defendant is reminded again that properly pled facts are deemed true and facts outside of the face of the pleading (or judicially noticeable) are not considered.

With that in mind, the complaint is not “devoid of any facts establishing extreme or outrageous conduct” as to Mohammad. Plaintiff alleges she was beaten so severely that surgery was required. Evidence at trial or summary judgment might prove otherwise, but this is a demurrer. Even if the court could find a lawful arrest (which it cannot) there is no authority that a private person can beat another into submission in effecting a citizen’s arrest.

It is unclear whether Top Watch, Perez or both raise this argument.

As to Top Watch the court agrees there are no facts of extreme or outrageous conduct and the demurrer will be sustained without leave to amend.

There are sufficient facts as to Mohammad and the demurrer is overruled if he indeed joins in this argument.

PREMISES LIABILITY

Premises liability is a negligence claim. The term “premises liability” pertains to breaches of duty specific to owners and occupiers of land.

Neither Top watch nor Mohammad is alleged to own or control the premises.

The demurrer is sustained with leave to amend as to both Mohammad and Top Watch.

MOTION TO STRIKE

It is true that fraud, malice or oppression must be proved by clear and convincing evidence, but that is simply not an issue when analyzing the sufficiency of the pleadings – no proof is required at this stage.

As to Top Watch, it cannot be liable in punitive damages for the conduct of its employee absent satisfaction of the pleading requirements of CC §3294(b):

“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.”

The allegations of “conspiracy” are unsupported by any factual underpinning. There are no facts Top Watch was aware of an employee’s unfitness, how it was aware, and that the knowledge was by an officer., director or managing agent. There is no factual basis for ratification.

As to Top Watch the motion will be granted and the court will take an offer whether there are facts for amendment at this time.

There is no such problem with the claim against Mr. Mohammad. He is alleged to have battered and assaulted Plaintiff without justification. That fits the definition of malice in CC §3294(a).

The motion is denied as to Mr. Mohammad.

If leave to amend is not granted, then Defendants will be ordered to answer within 20 days.