Case Number: BC689374 Hearing Date: June 06, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT; OVERRULED

I. BACKGROUND

On January 10, 2018, plaintiff David Steininger (“Plaintiff”) filed a complaint against defendants Mariposa Grill and Cantina Inc (“Mariposa”) and Does 1-50 alleging causes of action for (1) premises liability and (2) intentional infliction of emotional distress. The complaint includes a prayer for punitive damages.

The complaint in relevant part alleges the following: (1) Mariposa is a restaurant and bar. (Complaint ¶ 10); (2) On October 13, 2017, as Plaintiff was leaving Mariposa, another patron, who had been thrown out of Mariposa, stabbed Plaintiff in the back. (Complaint ¶¶ 24-26); (3) Plaintiff has been a frequent patron of Mariposa for a number of years. (Id. ¶ 9); (4) Plaintiff has personally observed a security guard posted at the bar door for a number of years. (Id. ¶ 13); (5) The bar has been the location of numerous fights, violence and gang issues of which Mariposa is aware of. (Id. ¶¶ 14-15); (6) When violence has occurred on Mariposa’s premises, security has been responsible for throwing patrons out of the bar. (Id. ¶ 17); (7) On October 13, 2017, the night of the incident, no security guard was on duty. (Id. ¶ 19); and (9) Mariposa could have prevented the injury to Plaintiff had proper security been in place and if the patron who stabbed Plaintiff was escorted out of the bar instead of only being told to leave. (Id. ¶ 29.)

On May 8, 2018, Mariposa filed a demurrer and a motion to strike. On May 23, 2018, Plaintiff filed oppositions.

The Court notes that the complaint alleges that Mariposa is a suspended corporation. (Complaint p.1 lns 20-23 and ¶ 5.) During the period of suspension of a corporation, the corporation, may not prosecute or defend an action. (See Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 862.) However, the demurrer papers attach Exhibit A, a copy of California Secretary State Business Search for Mariposa which provides that as of May 3, 2018, Mariposa is an active corporation. While a request for judicial notice has not been requested, the Court exercises its discretion to take judicial notice of Exhibit A pursuant to Evidence Code section 452(c) and (d). The opposition does not address the issue of whether Mariposa is an active corporation or not. Thus, based on Exhibit A, the Court finds that Mariposa is an active corporation and may defend itself in this suit. Thus, the Court will decide the demurrer and motion to strike on the merits.

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 by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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 Requirement

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. (CCP §§ 430.41 and 435.5.) The Court notes that Mariposa has complied with the meet and confer requirement. (See Decl. Mavromatis.)

b. Second Cause of Action: Intentional Infliction of Emotional Distress (“IIED”)

Mariposa contends that the facts alleged in the complaint do not establish that Mariposa acted with extreme and outrageous conduct or that Plaintiff suffered severe emotional distress. Plaintiff opposes on the ground that the act of choosing economics over the safety of patrons by failing to provide security guards on the evening that Plaintiff was stabbed is sufficient to establish extreme and outrageous behavior. Plaintiff further argues that the complaint sufficiently alleges that Plaintiff suffered severe emotional distress. In the alternative, Plaintiff requests leave to amend.

A cause of action for IIED exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) With regard to the first element, IIED calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)

The Court finds that at the demurrer stage, Plaintiff’s allegations are sufficient to support Plaintiff’s IIED claim. Here, Plaintiff alleges that Mariposa’s act of trying to maximize profits rather than providing security guards for the safety of its patrons despite having knowledge of violence occurring on its premises constitutes extreme and outrageous conduct. With respect to extreme and outrageous conduct, IIED calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210 [emphasis added].) Most notably, the complaint alleges that Mariposa was aware that its premises have been the location of numerous fights and gang issues and that these problems created a dangerous situation on Mariposa’s premises. (Complaint ¶¶ 14-15.) This contention is supported by the allegation that Mariposa has provided security guards on its premises for numerous years and that these security guards have been responsible for throwing out rowdy and violent patrons. (Id. ¶¶ 13, 16-17.)

The Court notes that that it is unclear whether Plaintiff’s allegations do in fact constitute extreme and outrageous conduct. However, “where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) Notably, the demurrer papers fail to cite analogous authority which provides that the facts here are insufficient to plead extreme and outrageous conduct. Thus, the Court finds that the complaint sufficiently pleads the first element of an IIED claim.

The Court notes Mariposa also contends that the complaint fails to sufficiently allege that Plaintiff suffered severe emotional distress. The requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) The complaint sufficiently alleges that Plaintiff suffered severe emotional trauma, shock and injury to his nervous system, as well as great mental, physical and nervous pain and suffering as a result of being attacked with a knife. (Complaint ¶¶ 28 and 35.)

Accordingly, the demurrer for failure to state sufficient facts is OVERRULED.

The Court also OVERRULES Mariposa’s demurrer for uncertainty on the grounds that (a) demurrers for uncertainty are disfavored and should only be sustained where the complaint is so uncertain that the demurring defendant cannot reasonably respond thereto (see, e.g., Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616); and (b) here, Plaintiff’s complaint is not so uncertain that Mariposa cannot reasonably respond thereto. Moreover, even if the pleading is somewhat vague, ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

c. Motion to Strike

Mariposa moves to strike Plaintiff’s punitive damages claim. The Court notes that Plaintiff contends that the motion to strike is uncertain as to what portions of the complaint Mariposa seeks to strike. Notably:

A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.

(CA ST CIVIL RULES Rule 3.1322.)

Here, in reviewing the moving papers, the Court finds that Mariposa’s motion to strike is directed at the prayer for relief on page 9 section 4 of the complaint which is based on both the premises liability and the IIED causes of action. Since, the motion is directed at the entire prayer, Mariposa was not required to quote the portions sought to be stricken.

Mariposa contends that the complaint fails to allege sufficient facts to warrant punitive damages under Civil Code § 3294. Plaintiff opposes on the ground that the complaint sufficiently alleges that the act of placing Mariposa’s financial interests above the safety of its patrons by failing to provide security is sufficient to allege despicable conduct warranting punitive damages. In the alternative, Plaintiff requests leave to amend.

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).)

‘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, citation omitted.) 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. (See, Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Here, the Court finds that the complaint sufficiently alleges facts warranting punitive damages. As analyzed above, the Court overruled the demurrer to the IIED cause of action on the ground that it was disputable whether the alleged conduct by Mariposa was extreme and outrageous conduct. Thus, the IIED claim supports the punitive damages prayer. (See generally Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1390.)

The Court notes that “to establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless. [Citation.] There must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.) Here, the complaint alleges that Mariposa has been a location where numerous fights and gang issues have arisen and that Mariposa is aware of such incidents. (Complaint ¶¶ 14-16.) This contention is supported by the factual allegation that Mariposa has hired security guards for several years and that the security guards are responsible for throwing out rowdy and violent patrons. (Id. ¶ 17.) Despite knowing that fights have occurred on its premises and that security personnel have been required, Mariposa allegedly made the conscious decision to choose its economics over the safety of its patrons and failed to provide security guards on the night of Plaintiff’s injury. (Id. ¶¶ 39 and 45.) Thus, the complaint sufficiently alleges that Mariposa acted with knowledge of the probable consequences to Plaintiff’s interests and deliberately failed to avoid these consequences.

Thus, the Court finds that the complaint sufficiently alleges facts warranting punitive damages. Accordingly, the motion to strike is DENIED.

IV. CONCLUSION

The Court OVERRULES demurrer in entirety and DENIES the motion to strike. Mariposa is ordered to file an answer within ten days of this order.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.