Demurrer by Defendants Huebner and Cloudmover, Inc. to Amended Complaint:

(a) The court sustains with 21 days’ leave to amend as to the first and fourth causes of action, and overrules as to the second and third causes of action.

(i) First cause of action for fraud, deceit, suppression and concealment: Sustained with 21 days’ leave to amend.

Facts supporting fraud must be pled with particularity sufficient to show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To allege fraud against a corporation, the complaint also must identify who made the misrepresentations and his or her authority to speak for the company. (Ibid.) Defendants correctly point out that all defendants are lumped together such that it is impossible to determine which defendant made which misrepresentations and/or which concealed facts.

(ii) Second cause of action for battery: Overruled.

Defendants are correct that a cause of action for technical battery exists, but they conflate the elements for battery, which is intentional, and technical battery, which sounds in negligence. “A battery is an intentional and offensive touching of a person who has not consented to the touching.” (Conte v. Girard Orthopaedic Surgeons Med. Grp., Inc. (2003) 107 Cal.App.4th 1260, 1266.) In the context of a medical procedure, a battery occurs “when the patient gives permission to perform one type of treatment and the doctor performs another [;] the requisite element of deliberate intent to deviate from the consent given is present.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.)
A cause of action for a “technical battery” occurs when “[a] surgical operation [is] performed without informed consent.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) There, “when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs v. Grant, supra, 8 Cal.3d at 241.)

The FAC sets forth sufficient facts to support a claim for technical battery under Cobbs v. Grant, supra, 8 Cal.3d at 241. Plaintiff complains that she consented only to having non-harmful products used and procedures performed, and did not give informed consent to the application of harmful products, chemicals, or procedures. (FAC, ¶ 37.) As a result Plaintiff suffered second-degree burns. (FAC, ¶¶ 15-17.) In other words, Defendants should have but never did disclose the possibility that Plaintiff could suffer from second-degree burns from the procedure.

(iii) Third cause of action for intentional infliction of emotional distress: Overruled.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

It is unclear how Defendants’ first argument defeats this cause of action. The case Defendants cite, Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, concerns a claim for negligent infliction of emotional distress. The cause of action pled here is intentional infliction of emotional distress. Further, Defendants’ argument against double recovery is irrelevant at this stage, as Plaintiff may plead different factually and legally inconsistent theories of liability. (Crowley v. Katleman (1994) 8 Cal.4th 666, 690–691.)

As for Defendants’ second argument, Plaintiff must plead either conduct done with intent to cause emotional distress or conduct performed with reckless disregard of the probability of causing emotional distress. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) Here, Plaintiff alleges the latter in paragraph 43.

(iv) Fourth cause of action for negligence and/or strict liability: Sustained with 21 days’ leave to amend.

As argued by Defendant Groupon, Inc. in its demurrer, Plaintiff has pled two different claims in one cause of action. “Negligence and strict liability form independent bases of liability.’ (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1479.) It thus is unclear which theory or theories Plaintiff is asserting against which Defendants.

(v) Uncertainty as to all causes of action against Cloudmover and Huebner (nos. 1-4): Overruled.

A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, the FAC is not so bad that Defendants cannot respond to it.

2. Motion by Defendants Monica Huebner and Cloudmover, Inc.

for Order Striking Complaint:

As to the request to strike allegations regarding punitive damages, the motion is moot based on the ruling on the demurrer (Motion 1).

As to the request to strike the prayer for attorney fees, the court grants with 21 days’ leave to amend. The FAC does not allege a basis in contract or statute for an award of attorney fees. Unless authorized by contract, statute, or law, each party must bear its own attorney fees. (Salgado v. Cnty. of Los Angeles (1998) 19 Cal.4th 629, 651; Code Civ. Proc., § 1033.5, subd. (a)(10).)

Moving Parties shall give Notice.

3. Demurrer by Defendant Groupon, Inc. to Amended Complaint:

The court sustains the demurrer with 21 day’s leave to amend.

(a) Failure to allege facts to support claim of joint venture (re: causes of action 1, 3, 4)

“A joint venture is an undertaking by two or more persons jointly to carry out a single business enterprise for profit. There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise. Whether a joint venture actually exists depends on the intention of the parties. Where evidence is in dispute the existence or nonexistence of a joint venture is a question of fact to be determined by the jury.” (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal.App.4th 343, 370 emphasis added, [internal quotes and citations omitted]; see also Workman v. City of San Diego (1968) 267 Cal.App.2d 36, 39 [to constitute joint venture, parties “must have a community of interest in a joint or common undertaking, each exercising or having the right to exercise equal or joint control and direction”].)

Although the FAC contains allegations of an “joint venture” and “joint enterprise” and Plaintiff goes so far as to identify the alleged joint venture as the “Groupon-Cloudmover Day Spa Joint Venture” (see FAC, ¶¶ 2, 6), there are no allegation of an actual single business enterprise. The FAC alleges “CloudMover Day Spa and Groupon agreed to jointly enter into a joint enterprise to promote and sell the products and services sold by Groupon and to be delivered to the consumers by CloudMover Day Spa.” (FAC, ¶ 6, p. 6:4-6.) In essence, Groupon marketed Cloudmover’s spa services in exchange for a portion of the sales generated by Groupon. Aside from the alleged joint promotion of Cloudmover’s spa services (which appears to be a portion or one aspect of a business), there is no allegation of any business or enterprise, or of any joint control over such business or enterprise.

In light of the above ruling, it is unnecessary for the court to reach the merits of Groupon’s remaining arguments.

Moving Party shall give Notice.

4. Motion by Defendant Groupon, Inc. for Order Striking Complaint:

The motion is moot based on the ruling on the demurrer (Motion 3).

Moving Party is ordered to give notice.

5. Demurrer by Defendant Anne Mason-Arnold

to Amended Complaint:

(a) The court sustains with 21 day’s leave to amend as to the first and fourth causes of action, and overrules as to the third cause of action.

(i) Failure to properly allege respondeat superior as to all causes of action against Arnold (nos. 1-4):
Overruled as to this ground.

As an initial matter, Plaintiff’s request for judicial notice of Cloudmover and Huebner’s Answer to the Complaint and their discovery responses (Exs. A-D to Day Declaration filed on 12/14/14) is denied in its entirety. Although the court may take judicial notice of court records under Evid. Code, § 452, subd. (d), judicial notice will not extend to any hearsay allegations contained therein. (Bach v. NcNelis (1989) 207 Cal.App.3d 852, 865.) Any purported statements by Defendants Cloudmover, and/or Huebner in court records are inadmissible hearsay as against Defendant Arnold.
With respect to Arnold’s respondeat superior argument, “[i]t is well settled that corporate directors cannot be held vicariously liable for the corporation’s torts in which they do not participate. Their liability, if any, stems from their own tortious conduct, not from their status as directors or officers of the enterprise. . . . [¶]
Directors are jointly liable with the corporation and may be joined as defendants if they personally directed or participated in the tortious conduct.” (Frances T. v. Vill. Green Owners Assn. (1986) 42 Cal.3d 490, 503-504 [internal citations and quotes omitted].)
Plaintiff has alleged in the FAC that Arnold was essentially the sole decision maker of Defendant Cloudmover, Inc., and that nothing was done without her knowledge or approval, including Cloudmover’s use of products that could be harmful to customers, the employees’ or independent contractors’ failure to alert customers of the potential for injury in using such products, and the “stonewalling” of Cloudmover’s representatives to provide Plaintiff with the chemical information of products used on Plaintiff. (See FAC, ¶¶ 3-5.) These allegations are sufficient to support a claim that Arnold personally directed or participated in the alleged tortious conduct.

(ii) First cause of action for fraud, deceit, suppression and concealment:
Sustained with 21 days’ leave to amend, for the same reasons stated above in the analysis of Cloudmover and Huebner’s demurrer (Motion 1).

(iii) Second cause of action for battery:
Overruled, for the same reasons stated above in the analysis regarding respondeat superior.

(iv) Third cause of action for intentional infliction of emotional distress:
Overruled, for the same reasons stated above in the analysis regarding respondeat superior and in the analysis of Cloudmover and Huebner’s demurrer (Motion 1).

(v) Fourth cause of action for negligence and/or strict liability: Sustained with 21 days’ leave to amend, for the same reasons stated above in the analysis of Cloudmover and Huebner’s demurrer (Motion 1).

(vi) Claim for punitive damages:
Overruled as to this ground.

“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.)

Moving Party shall give Notice.

6. Motion by Defendant Ann Mason-Arnold for Order Striking Complaint:
The motion is moot based on the ruling on the demurrer (Motion 5).
Moving Party Mason-Arnold to give Notice.