Case Number: BC669671 Hearing Date: July 24, 2018 Dept: 3

BABAK SAIDIAN,

Plaintiff(s),

vs.

SEDRAK EKIMYAN, et al.,

Defendant(s).

Case No.: BC669671

[TENTATIVE] ORDER OVERRULING DEMURRER TO FAC AND DENYING MOTION TO STRIKE

Dept. 3

1:30 p.m.

July 24, 2018

The Demurrer is OVERRULED. The Motion to Strike the prayer for punitive damages is DENIED.

I. Background Facts

On July 24, 2017, plaintiff Babak Saidian (“Plaintiff”), filed a complaint against defendants Sedrak Ekimyan (“Ekimyan”), Tommy Express Car Wash (“TECW”) and Does 1 to 20. On May 4, 2018, Plaintiff filed a first amended complaint (“FAC”) after the Court sustained a demurrer and granted a motion to strike. The FAC alleges causes of action for (1) negligence, (2) battery and (3) assault. The Court notes that while the first page of the FAC lists Plaintiff’s causes of action as (1) negligence, (2) battery and (3) assault (FAC p.1), the FAC later names battery as the first cause of action and assault as the second cause of action (FAC p. 5 and p.6). Negligence is not named as a cause of action in the body of the FAC.

The FAC in relevant part alleges the following: 1) Ekimyan is the owner of TECW. (FAC ¶ 3); 2) Ekimyan or TECW own a certain vehicle. (Id. ¶ 11); 3) On July 16, 2017, while at work for TECW, Ekimyan was in his car having a conversation with Plaintiff who was standing outside of Ekimyan’s vehicle. (Id. ¶ 13); 4) Plaintiff was leaning on Ekimyan’s vehicle with his arms and hands on the window sill during the conversation which lasted for several minutes. (Id. ¶¶ 13-14); 5) During the conversation, Ekimyan became enraged at Plaintiff and in order to cause harm to Plaintiff, Ekimyan accelerated his car while Plaintiff was still leaning on the vehicle. (Id. ¶ 15); 6) Ekimyan’s operation of his vehicle proximately caused injury with Plaintiff’s person. (Id. ¶ 19); and 7) Defendants negligently entrusted, maintained, controlled, managed, drove, manufactured, operated and repaired their vehicle thereby causing the vehicle to collide and come into direct contact with Plaintiff’s person and/or Plaintiff’s automobile. (Id. ¶ 19.)

On June 8, 2018, Ekimyan and TECW (jointly “Moving Defendants”) filed a demurrer and a motion to strike. Moving Defendants (1) demur to the battery and assault causes of action and (2) move to strike the prayer for punitive damages. On July 9, 2018, Plaintiff filed an opposition to the demurrer and on July 13, 2018, Moving Defendants filed replies.

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.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike 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.)

III. Discussion

a. Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike 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. (Code Civ. Proc. §§ 430.41 and 435.5.) The Court notes that Moving Defendants have fulfilled the meet and confer requirements prior to filing this demurrer. (See Decl. Conroy.)

b. Failure to Allege Sufficient Facts: Battery and Assault

Moving Defendants contend that the FAC fails to allege any facts indicating that Moving Defendants touched Plaintiff or that Moving Defendants made any harmful or offensive contact with Plaintiff. Moving Defendants also argue that the FAC does not specify that Ekimyan was acting in his role as an employee rather than the owner of TECW, thus Moving Defendants contend that TECW cannot be held vicariously liable for intentional torts because the casual nexus is not plead. Finally, Moving Defendants argue that while the FAC mentions something about Plaintiff’s car being damaged, based on the allegations, it is unclear what Moving Defendants did to damage Plaintiff’s car.

Plaintiff opposes and argues that the allegation that Ekimyan, an agent or employee of TECW, drove off while Plaintiff was standing by the defendants’ car is sufficient to allege a cause of action for battery and assault. Plaintiff argues that it can be easily proven from such an act that Ekimyan satisfied the elements of battery and assault.

The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Id.)

The Court finds that the FAC sufficiently alleges facts to state a claim for battery. The FAC alleges that during a conversation between Ekimyan and Plaintiff, Ekimyan became enraged at Plaintiff, and in order to cause harm to Plaintiff, Ekimyan accelerated his car while Plaintiff was still leaning on the vehicle with his arms and hands still on the window sill and caused the vehicle to collide and come into direct contact with Plaintiff’s person. (FAC ¶¶ 15 and 19.) Thus, contrary to Moving Defendants’ arguments, the FAC alleges that the vehicle that Ekimyan was driving made contact with Plaintiff. The FAC also alleges that the defendants intended to cause such harmful contact (FAC ¶¶ 13 and 29) and this contention is supported by the allegations that Ekimyan became enraged at Plaintiff during a conversation and that Ekimyan accelerated and drove away despite knowing that Plaintiff was leaning on his vehicle. (FAC ¶¶ 13-14 and 16.) Thus, the FAC alleges sufficient facts to state a claim for battery.

The FAC also alleges that the defendants intended to and did cause Plaintiff to suffer an apprehension of immediate harmful conduct. (FAC ¶ 37.) The claim for assault is sufficiently pled.

The Court notes that Moving Defendants argue that there are insufficient facts to establish that TECW can be vicariously liable for the intentional torts of Ekimyan. The opposition does not specifically address this argument.

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) For the employer to be liable for an intentional tort, the employee’s act must have a “causal nexus to the employee’s work,” i.e., “inherent in the working environment” or “typical” to the employer’s business. (See Montague, supra, 223 Cal.App.4th at 1521; Lisa M., supra, 12 Cal.4th at 298-99.) The employee’s conduct falls within the scope of his employment and is thus a causal nexus if the conduct either: (1) is required by or incidental to the employee’s duties; or (2) it is reasonably foreseeable in light of the employer’s business. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.)

Here, Plaintiff alleges that the subject incident occurred while Ekimyan was at work for TECW. (FAC ¶ 13.) The FAC also in relevant part alleges that the defendants were employees of each other and were acting within the purpose, scope and authority of their employment. (FAC ¶ 7.) The Court notes that ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.) Here, the Court finds that under liberal pleading standards, the FAC sufficiently alleges that Ekimyan was acting within the scope of his employment with TECW when the injury to Plaintiff occurred. Thus, TECW may be vicariously liable for the battery cause of action.

The Court finally notes that the FAC also alleges that Plaintiff’s vehicle was damaged to such an extent that repairs were necessary. (FAC ¶ 27.) However, as pointed out by Moving Defendants, based on the allegations, it is unclear how Plaintiff’s vehicle was damaged. The opposition seems to indicate that Ekimyan broke Plaintiff’s windshield wiper, however, no such facts are alleged in the FAC. Regardless, the analysis above remains the same.

Accordingly, the demurrer is OVERRULED.

c. Motion to Strike Punitive Damages

Moving Defendants move the Court to strike Plaintiff’s prayer for punitive damages on page 7, paragraph 8 of the FAC on the ground that the FAC fails to plead facts sufficient to support a claim for punitive damages.

The opposition argues that the allegation that Ekimyan intended to cause and did cause a harmful contact with Plaintiff’s person falls within the meaning of malice and oppression due to the very nature of that act. The opposition further argues that the allegation that Ekimyan drove off while Plaintiff was standing by the vehicle is sufficient to show that Ekimyan was aware of the probable dangerous consequences of his actions and that Ekimyan willfully and deliberately failed to avoid those consequences thereby warranting punitive damages.

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).) Civil Code (b) § 3294(b) provides that:

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.

Malice is defined as either 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. (Civil Code § 3294(c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Specific facts must be pled in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

The Court finds that the allegations in the FAC are sufficient to support a prayer for punitive damages. As analyzed above, the FAC sufficiently alleges facts which state a claim for battery. The battery claim supports the proposition that Ekimyan intended to cause injury to Plaintiff thus constituting malice for purposes of punitive damages. Additionally, since Ekimyan is alleged to be an officer and director of TECW (FAC ¶ 7), TECW may be liable for punitive damages pursuant to Civil Code section 3294(b) for the malicious acts of Ekimyan.

Accordingly, the motion to strike is DENIED.

Defendants shall file and serve their answer within 15 days.

Moving Party is ordered to give notice unless notice is waived.