Case Number: 19STCV08710 Hearing Date: March 09, 2020 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ZHOIE PEREZ, etc.,

Plaintiffs,

vs.

EDDUIN ZELAYA GRUNFELD., etc., et al.,

Defendants.

CASE NO.: 19STCV08710

[TENTATIVE] ORDER RE: DEMURRERS TO SECOND AMENDED COMPLAINT; MOTIONS TO STRIKE

Date: March 9, 2020

Time: 8:30 a.m.

Dept. 56

FSC: July 13, 2020

Jury Trial: July 27, 2020

MOVING PARTIES: Defendant Edduin Zeyala Grunfeld (“Grunfeld”); Defendant Bais Chana Heritage School, Inc. (erroneously sued as Ohel Chana High School, a California business entity unknown) and Defendant Etz Jacob Congregation aka Etz Jacob Torah Center (collectively, “School and Congregation Defendants”); and Defendant Stealth Protection and Security, Inc. (“SPS”)

RESPONDING PARTY: Plaintiff Zhoie Perez

The Court has considered the moving, opposition, and reply papers.[1]

BACKGROUND

Plaintiff’s Second Amended Complaint (“SAC”) arises from the alleged wrongful actions of Grunfeld which resulted in Plaintiff being shot in her leg due to her status as a transgender female. Plaintiff filed the operative SAC against Defendants alleging causes of action for: (1) assault and battery; (2) false imprisonment; (3) negligence; (4) violations of the Ralph Civil Rights Act pursuant to California Civil Code, Section 51.7; (5) violations of the Bane Civil Rights Act pursuant to California Civil Code, Section 52.1; and (6) violations of the Unruh Act pursuant to California Civil Code, Sections 51 and 52.

Pertinent Factual Allegations of the SAC

The SAC alleges that: (1) Plaintiff is a 45-year old transgender woman of color and was injured by a gunshot fired by Grunfeld while in the course and scope of his employment as a security officer for School and Congregation Defendants and SPS (SAC at ¶ 11); (2) as Plaintiff was returning from a medical appointment she walked passed the Center and the School and was observing the architecture and stained glass windows of the building and was intrigued (Id. at ¶ 13); (3) Plaintiff lawfully stopped on the public sidewalk to look at and take pictures of the building but was unaware that the building was a synagogue and/or part of a school (Id.); (4) in response, Grunfeld who was dressed in tactical riot gear attire and armed with a handgun came from behind a locked wrought-iron front gate and onto the public sidewalk to approach Plaintiff (Id. at ¶ 14); (5) he was employed as an armed security guard by School and Congregation Defendants and SPS at all relevant times and was acting within the course and scope of his employment as he remained in his security uniform (Id. at ¶ 15); and (6) Grunfeld aggressively approached Plaintiff coming within feet of her an putting his hand on his gun provided to him by SPS and School and Congregation Defendants, and began to question Plaintiff about what she was doing and ordered she leave the property even though she was on public property. (Id. at ¶ 16)

The SAC further alleges that: (1) Plaintiff remained on the public sidewalk and continued to non-violently record Grunfeld with her cellular phone to document their interaction (Id. at ¶ 17); (2) following Plaintiff’s lawful recording of the interaction, Grunfeld became belligerent and without provocation and justification, began to harass, intimidate, coerce and threaten Plaintiff by pointing his finger and gun at Plaintiff’s face, yelling and threatening to shoot Plaintiff, calling Plaintiff a terrorist, and continually grabbing his gun and pointing it at Plaintiff in an attempt to terrorize and frighten her and/or instigate a physical altercation (Id. at ¶ 19); (3) at all relevant times, Grunfeld use his actual and/or apparent authority as a security officer employed by SPS and School and Congregation Defendants to guard the premises during the time he threatened and harassed Plaintiff (Id. at ¶ 20); (4) the weapon brandished by Grunfeld was a gun he used within the course and scope of his employment as an armed security officer employed by SPS, as well as School and Congregation Defendants (Id. at ¶ 20); (5) when Plaintiff refused to leave the public sidewalk and/or stop recording the interaction, Grunfeld went back behind the locked wrought-iron gate and continued to threaten, harass, and intimidate Plaintiff who remained at all times on the public sidewalk 6 to 8 feet away from the gate (Id. at ¶¶ 21-22); (6) from behind the gate, Grunfeld drew his weapon and pointed it at Plaintiff for no other reason than her right to exist as a transgender woman of color and/or as a member of another actual and/or perceived protected class and to exercise her constitutional rights (Id. at ¶ 23); (7) and from behind the gate, Grunfeld pointed his gun in the direction of the market and he remained in uniform as a security officer employed by Defendants and threatened Plaintiff with a gun (Id. at ¶ 24); and (8) from behind the locked wrought-iron gate, Grunfeld pulled the trigger and shot his weapon in the direction of the market, the people eating at the market, and Plaintiff. (Id. at ¶ 25.)

The SAC further alleges that: (1) from behind the gate, Grunfeld shot Plaintiff in the leg, and at all relevant times remained in uniform as a security officer employed by SPS and School and Congregation Defendants (Id. at ¶¶ 25-26); (2) Grunfeld shot his weapon intentionally with intent to hurt and/or kill Plaintiff and to deprive her of her freedom of movement and freedom to exercise her First Amendment Rights by use of physical force (Id. at ¶ 28); (3) as a result of being shot, Plaintiff collapsed and fell onto the sidewalk area where she was standing and was rendered unable to move (Id. at ¶ 30); (4) Grunfeld then came from the gated area with his gun drawn and told Plaintiff the next time he would shoot her “for real” meaning that he would shoot to kill her (Id. at ¶ 30); (4) after wrongfully shooting Plaintiff, Defendants and each of them wrongfully and intentionally summonsed law enforcement causing Plaintiff to be arrested without a warrant and she would not have been arrested but for Defendants’ wrongful and intentional conduct (Id. at ¶ 31); (5) she was arrested without a warrant and was handcuffed to a gurney while she bled and was in pain from the bullet wound caused by Grunfeld, and Defendants effectuated an unlawful private person’s arrest (Id.); (6) SPS and School and Congregation Defendants knew and/or should have known that Grunfeld was unfit to perform his work based on him stockpiling illegal weapons and harboring violent animus towards people with protected characteristics including Plaintiff’s actual and/or perceived sex, gender, race, color, religion, national origin, political affiliation, and/or ancestry (Id. at ¶ 32); and (7) Grunfeld made social media posts which were communicated to SPS and School and Congregation Defendants about stockpiling illegal weapons and harboring violent animus against transgender people and people with protected characteristic’s like Plaintiff whom he falsely called a terrorist. (Id. at ¶ 33.)

The Present Demurrers and Motions to Strike

Grunfeld filed a demurrer to the second, fourth, and sixth causes of action in the SAC. School and Congregation Defendants filed a demurrer to the first, second, third, fourth, fifth, and sixth causes of action in the SAC. SPS filed a demurrer to the first, second, third, fourth, fifth, and sixth causes of action in the FAC.

Grunfeld, School and Congregation Defendants, and SPS each filed motions to strike portions of the SAC.

The Court will address the respective demurrers and motions to strike filed by the parties within this one ruling.

MEET AND CONFER

The meet and confer requirement has been met.

DEMURRERS

“The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.) “California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.)

Issue No. 1: First Cause of Action

“An employer is vicariously liable for the torts of employees committed within the course or scope of their employment.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138-139.) “[E]mployers are [not] strictly liable for all actions of their employees during working hours.” (Id. at 139.) “If an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee’s actions.” (Id.) “Respondeat superior liability should apply only to the types of injuries that as a practical matter are sure to occur in the conduct of the employer’s enterprise.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.) “[V]icarious liability [has been] deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute.” (Id. at 301.) “[I]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005.) “In such cases, the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Id.) Liability will not be imputed on an employer “if the employee inflicts injury out of personal malice, not engendered by the employment . . . or acts out of personal malice unconnected with the employment.” (Id.)

“[T]he employer will not be held liable for the assault or intentional tort that did not have a causal nexus to the employee’s work.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) “An act serving only the employee’s personal interest is less likely to arise from or be engendered by the employment than an act that, even if misguided, was intended to serve the employer in some way.” (Id. at 298.) “That the employment bought the tortfeasor and victim together in time and place is not enough.” (Id.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “[R]atification is the [c]onfirmation and acceptance of a previous act.” (Id. at 168.) “A corporation cannot confirm and accept that which it does not actually know about.” (Id.)

Analysis Pursuant to the First Cause of Action

The Court incorporates its discussion of the pertinent factual allegations from above and applies it to its discussion about the sufficiency of the first cause of action in the SAC.

The Court finds that the allegations in the SAC pursuant to the first cause of action against either: (1) SPS; or (2) School and Congregation Defendants are insufficient because the SAC itself alleges that Grunfeld’s actions were clearly motivated by his own personal animus against transgendered people. Despite the SAC making the conclusory allegation that Grunfeld was acting in the course and scope of his employment during the alleged incident, the specific allegations about his animus, threats, and social media posts indicating his violent propensities control over general allegations under Perez. There is also no basis for ratification under Cruz as there are not sufficient facts pled that either SPS or School and Congregation Defendants ratified a prior act of Grunfeld shooting someone based on a violent and personal animus. There is no basis to impose vicarious liability or respondeat superior liability against either SPS or School and Congregation Defendants based on Grunfeld’s personal animus and actions against those with Plaintiff’s characteristics.

The demurrers of SPS and School and Congregation Defendants to the first cause of action are SUSTAINED WITHOUT LEAVE TO AMEND under Blank. Plaintiff has not met her burden in showing a reasonable possibility that the first cause of action can be amended to cure its current defects. This is Plaintiff’s third version of her complaint as she has previously filed the initial complaint and a First Amended Complaint.

Issue No.2: Second Cause of Action

“The tort and the crime of false imprisonment are defined in the same way.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 372.) “[T]he tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time.” (Id. at 373.) “That length of time can be as brief as 15 minutes.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) “A person is falsely imprisoned if he [or she] is wrongfully deprived of his [or her] freedom to leave a particular place by the conduct of another.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 372.) “The delegation by a citizen to a law enforcement officer of the physical act of arrest need not be express, but may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect. In considering whether a citizen’s arrest was made, and the legality thereof, it is the substance and not any magic words which must be considered.” (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1211.) “False arrest is but one way of committing a false imprisonment, and they are distinguishable only in terminology.” (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673.) “The only mental state required to be shown to [state a cause of action for] false imprisonment is the intent to confine, or to create a similar intrusion.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.)

The Court incorporates its recitation of pertinent allegations of the SAC and the analysis pursuant to the first cause of action above and applies it to the discussion of the sufficiency of the second cause of action in the SAC. There are no facts to support a claim for false imprisonment against either SPS or School and Congregation Defendants. With respect to Grunfeld, Plaintiff has failed to plead facts that Grunfeld intended to confine her with the requisite mental state per Fermino. (SAC at ¶¶ 48-58.) Plaintiff pled that she was on a public sidewalk during the entire time this incident occurred.

Plaintiff has not stated sufficient facts for a cause of action for false imprisonment against Grunfeld, SPS, or School and Congregation Defendants.

The Court SUSTAINS WITHOUT LEAVE TO AMEND the respective demurrers of Grunfeld, SPS, and School and Congregation Defendants to the second cause of action in the SAC under Blank.

Issue No. 3: Third Cause of Action

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Liability for negligent conduct may only be imposed where there is a duty of care owed by the defendant to the plaintiff or to a class of which the plaintiff is a member.” (Id. at 918.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) When alleging a cause of action for negligence a plaintiff must allege the acts or omissions that were negligently performed. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 522.) “An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “[A] person in plaintiff’s position retains significant legal remedies against an employer of a security guard who engages in misconduct . . . [t]he employer remains potentially liable to a victim . . . for negligent hiring, retention, and supervision of a security guard.” (Maria D. v. Westec Residential Sec., Inc. (2000) 85 Cal.App.4th 125, 149.) “Negligence liability will be imposed upon the employer if it knew or should have known that hiring the particular employee created a particular risk or hazard and that particular harm materializes.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) “It would be a dubious proposition indeed to suggest that a party, simply by virtue of engaging in business, owes a duty to the world for all acts taken by its employee, irrespective of whether those actions were connected with the enterprise in which the business was engaged.” (Id. at 816.) “Failing to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom its employees come into contact, regardless of their relationship to the employer.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Foreseeability of harm is a crucial factor in determining the existence and scope of [a] duty.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1189.)

Plaintiff’s opposition against SPS and School and Congregation Defendants in connection with the third cause of action assert that those Defendants can be held liable under a theory of: (1) vicarious liability; or (2) respondeat superior. The Court as explained above has already indicated that there is no basis for vicarious liability or respondeat superior liability due to Grunfeld’s actions being personal in nature. While Plaintiff’s opposition indicates that both SPS and School and Congregation Defendants can be liable on a theory of negligent hiring, retention, and supervision, Plaintiff is not bringing a cause of action for such claim as Plaintiff’s third cause of action is merely for negligence. The Court, however, finds that Plaintiff’s conclusory allegations that Defendants knew or should have known that Grunfeld was unfit are insufficient under Shea Homes. (SAC at ¶¶ 59-67.) Also, as explained above, Grunfeld’s acts as alleged by the SAC were personal in nature. Plaintiff also fails to state facts, and not mere conclusions, establishing the foreseeability of the harm she suffered.

The respective demurrers of School and Congregation Defendants and SPS to the third cause of action in the SAC are SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 4: Fourth Cause of Action

California Civil Code, Section 51.7(b) says that “[a]ll persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . .or because another person perceives them to have one or more of those characteristics.” “Civil Code section 51, subdivision (b) provides [that] . . . [a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880.) California Civil Code, Section 51(e)(5) indicates that “[g]ender means sex, and includes a person’s gender identity and gender expression. Gender expression means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” “Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Court incorporates its recitation of pertinent factual allegations from above and applies it to the Court’s discussion of the sufficiency of the fourth cause of action in the SAC. Plaintiff has stated a cause of action in the SAC against Grunfeld for violation of the Ralph Civil Rights Act pursuant to California Civil Code, Section 51.7. (SAC at ¶¶ 68-76.) There are no facts, however, pled that either SPS or School and Congregation Defendants personally committed violent acts against Plaintiff or threatened to commit violent acts against Plaintiff or her property.

Plaintiff has pled that Grunfeld possessed animus towards transgender individuals and labeled her a terrorist because of her darker-skinned complexion, that he shot her, and he shot her due to that characteristic.

Plaintiff, however, has not stated a cause of action for violation of the Ralph Civil Rights Act pursuant to California Civil Code, Section 51.7 against either School and Congregation Defendants or SPS because as indicated above, Plaintiff has not pled facts to warrant the showing of ratification, vicarious liability, or respondeat superior liability.

The demurrer of Grunfeld to the fourth cause of action in the SAC is OVERRULED. The respective demurrers filed by School and Congregation Defendants and SPS to the fourth cause of action in the SAC are both SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 5: Fifth Cause of Action

“The Bane Act prohibits interfering by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1289-1290.) “[I]t is clear that to state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence. Second, the violence threatened must be due to plaintiff’s membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Court incorporates its analysis from above with respect to the fourth cause of action in the SAC and applies it to its analysis of the fifth cause of action in the SAC. Plaintiff has failed to state a cause of action against either SPS or School and Congregation Defendants for violation of the Bane Civil Rights Act. There are no facts pled that SPS or School and Congregation Defendants committed violence or threatened to commit violence against Plaintiff.

The respective demurrers of SPS and School and Congregation Defendants are SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 6: Sixth Cause of Action

“The Unruh Civil Rights Act was enacted to create and preserve nondiscriminatory environment in California business establishments by banishing or eradicating arbitrary, invidious discrimination by such establishments.” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937.) “The substantive protections against discrimination established by the Unruh Civil Rights Act are set forth in Civil Code section 51.” (Id.) California Civil Code, Section 51(b) says that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” To state a cause of action for violation of the Unruh Civil Rights Act, a plaintiff must show: (1) that defendant denied, aided or incited a denial of or discriminated against plaintiff with respect to full and equal accommodations, advantages, facilities, privileges, or services; (2) the substantial motivating reason for defendant’s conduct was due to its perception of an actionable characteristic; (3) the actionable characteristic was a substantial motivating reason for defendant’s conduct; and (4) defendant was a substantial factor in causing Plaintiff’s harm. (CACI 3060.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Plaintiff has failed to plead, pursuant to the sixth cause of action, that any of the Defendants were a substantial factor in causing her harm. Under Covenant Care, this cause of action is required to be pled with particularity. (SAC at ¶¶ 90-98.) Plaintiff’s sixth cause of action in the SAC is not sufficiently pled.

Therefore, the demurrers of: (1) SPS; (2) School and Congregation Defendants; and (3) Grunfeld to the sixth cause of action in the SAC are SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

MOTIONS TO STRIKE

Grunfeld, SPS, and School and Congregation Defendants each filed respective motions to strike portions of the FAC. Due to the Court sustaining without leave to amend the respective demurrers of SPS and School and Congregation Defendants as to each cause of action asserted in the SAC, the Court GRANTS the respective motions to strike filed by SPS and School and Congregation Defendants WITHOUT LEAVE TO AMEND.

The Court, however, will address the motion to strike filed by Grunfeld as he did not demur to the first, third, or fifth causes of action in the SAC, and in connection with his demurrer to the SAC as indicated above, the Court overruled his demurrer to the fourth cause of action in the SAC.

Grunfeld’s Motion to Strike

Grunfeld asserts that: (1) Plaintiff’s second cause of action for false imprisonment is devoid of facts to support the cause of action or damages; (2) Plaintiff’s third cause of action for negligence is devoid of facts to support punitive damages; (3) Plaintiff’s fourth and sixth causes of action are devoid of facts to support either cause of action or damages; and (4) Plaintiff’s claims for attorneys’ fees, civil penalties, and treble damages cannot survive.

To the extent that Grunfeld is arguing that Plaintiff has failed to sufficiently state various causes of action and is seeking to strike entire causes of action from the SAC on that basis, the Court will not address such arguments in connection with his motion to strike as those arguments have been addressed in connection with his demurrer to the SAC.

California Code of Civil Procedure, Section 436(a) allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” California Code of Civil Procedure, Section 436(b) allows a court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Legal Standard for Imposing Punitive Damages

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. 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.) Fraud under California Civil Code, Section 3294(c)(3) “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.” California Civil Code, Section 3294(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) A “conclusory characterization of [a] defendant’s conduct as intentional, wilful and fraudulent [is] [a] patently insufficient statement of oppression, fraud, or malice.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 865.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) Punitive damages “are not a favorite of the law and the granting of them should be done with the greatest of caution. They are allowed only in the clearest of cases.” (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526.)

Issue No. 1: Second Cause of Action

Due to the second cause of action failing to state a cause of action against Grunfeld as explained above in connection to his demurrer to the second cause of action in the SAC, the Court GRANTS Grunfeld’s request to strike damages allegations, including punitive damages, in connection with the second cause of action in the SAC WITHOUT LEAVE TO AMEND.

Issue No. 2: Third Cause of Action

Grunfeld asserts that this Court has already ruled on Plaintiff seeking punitive damages in connection with the third cause of action in the SAC, and as such punitive damages from Plaintiff’s third cause of action for negligence should be stricken.

“[M]ere negligence, [e]ven gross negligence is not sufficient to justify an award of punitive damages” because “[m]ere spite or ill will is not sufficient” to justify the imposition of punitive damages against a defendant. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.)

Although Grunfeld did not demur to the third cause of action in the SAC for negligence, under Ebaugh negligent conduct is not enough to impose punitive damages.

As such, the Court GRANTS Grunfeld’s request to strike punitive damages in connection with the third cause of action in the SAC WITHOUT LEAVE TO AMEND.

Issue No. 3: Punitive Damages in Connection with the Fourth and Sixth Causes of Action

As indicated above in connection with Grunfeld’s demurrer to the sixth cause of action in the SAC, the SAC fails to plead the sixth cause of action with sufficient facts against Grunfeld. The sixth cause of action cannot warrant imposition of punitive damages against Grunfeld. The Court GRANTS Grunfeld’s request to strike punitive damages from the sixth cause of action in the SAC WITHOUT LEAVE TO AMEND.

The Court finds that Plaintiff has stated facts indicating malice to support punitive damages against Grunfeld pursuant to the fourth cause of action in the SAC. Grunfeld’s demurrer to the fourth cause of action in the SAC was overruled.

The Court incorporates its recitation of pertinent factual allegations from above and applies it to the discussion of punitive damages against Grunfeld pursuant to the fourth cause of action in the SAC.

The SAC clearly shows malice on behalf of Grunfeld. The SAC alleges that he pointed his gun at Plaintiff and shot his gun in the direction of a market where customers were eating. The SAC also alleges that Grunfeld threatened to “next time shoot Plaintiff for real” meaning that he would shoot to kill her. The SAC specifically alleges that Grunfeld, at numerous times, threatened to shoot and kill Plaintiff and that Grunfeld’s intention in shooting was to injure or kill Plaintiff. The SAC further alleges that Grunfeld had animus against inidividuals with Plaintiff’s characteristics.

Therefore, the Court DENIES Grunfeld’s request to strike all references to damages, including punitive damages, pursuant to the fourth cause of action in the SAC.

Issue No. 4: Attorneys’ Fees, Civil Penalties, and Treble Damages

Grunfeld asserts that Plaintiff’s claim for attorneys’ fees, civil penalties, and treble damages cannot survive because the SAC fails to state causes of action pursuant to the fourth and sixth causes of action. Grunfeld, however, fails to cite to any legal authority in his moving papers to support this argument. As such, the Court finds that Grunfeld has conceded on this point of argument. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

The Court, therefore, DENIES Grunfeld’s request that because the SAC fails to state a cause of action for violation of the Ralph Act and Bane Act, Plaintiff’s claims for attorneys’ fees, civil penalties, and treble damages should be stricken.

The Court GRANTS IN PART Grunfeld’s motion to strike.

Grunfeld shall have twenty days to answer the SAC.

The respective moving parties are each ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 9th day of March 2020

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Grunfeld did not file a reply brief in connection with his demurrer and motion to strike.