Case Number: BC573073 Hearing Date: July 21, 2016 Dept: 39

Hui Ja Cho v. Kenneth Oh, BC573073

Motion for Judgment on the Pleadings by Plaintiff and Cross-Defendants, Hui Ja Cho and Huiju Dol San Club, Inc.: the unopposed motion is GRANTED in its entirety, with leave to amend through August 5, 2016

This case arises out of the interaction between Plaintiff Hui Ja Cho and Defendant Kenneth Oh at a café managed by Plaintiff Cho. The Complaint asserts causes of action for sexual battery, sexual harassment, violation of the Bane Act, defamation, slander, and intentional infliction of emotional distress. On April 20, 2015, Defendant Kenneth Oh filed a Cross-Complaint, asserting causes of action for: (1) misrepresentation; (2) assault & battery; (3) negligence; (4) intentional infliction of emotional distress; and (5) abuse of process.

Cross-Defendants move for judgment on the pleadings as to each cause of action.

A cross-defendant may move for judgment on the pleadings where the cross-complaint does not state facts sufficient to constitute a cause of action against that cross-defendant. (C.C.P. § 438(c)(B).) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)

The specific points raised in the motion are discussed as follows:

Misrepresentation (First Cause of Action)

The Cross-Complaint alleges that “Cho had no intention to operate Dol San in ordinary sense of business” and that Cho’s “silent representation that everyone was welcome to Dol San was false.” (Cross-Compl. ¶ 19.)

The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 638.) Fraud must be pled with particularity which “necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.” (Id. at 645.) The burden of pleading fraud against a corporate entity is even greater as the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Id. at 645.) “Each element must be alleged with particularity.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1066.)

“The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182.) “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)

Here, the court agrees that the Cross-Complaint fails to allege facts with sufficient particularity to satisfy this requirement. Additionally, the Cross-Complaint fails to sufficiently allege causation, reliance, or intent.

The motion is GRANTED.

Assault and Battery (Second Cause of Action)

“The elements of a civil battery are: 1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff’s person; 2. Plaintiff did not consent to the contact; and 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.” (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.)

“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.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Here, the Cross-Complaint alleges that Myung Kim “committed assault and battery upon CC-Ken, grabbing CC-Ken by the collar, knocking him down to the ground from the high chair, [and] shouting” at him. (Cross-Compl. ¶ 14.) Kim is alleged to be a male employee of Cho. (Id.)

“While the employee thus need not have intended to further the employer’s interests, the employer will not be held liable for an assault or other 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.) “[T]he incident leading to injury must be an outgrowth of the employment; the risk of tortious injury must be inherent in the working environment or typical of or broadly incidental to the enterprise the employer has undertaken.” (Id. at 298.)

In this action, the Cross-Complaint does not allege that Kim was acting within the scope of this employment or was ordered by Cho to commit an assault and battery upon Oh. The conclusory allegation that the conduct was “in an unlawful furtherance of the enterprise of Cho,” (Cross-Compl. ¶ 21) is insufficient. The Cross-Complaint contains no factual allegations establishing that Kim’s actions were inherent in the working environment or an outgrowth of the employment. Therefore, the Cross-Complaint does not state a claim against Kim’s employers, Cho and Huiju Dol San Club, Inc.

The motion is GRANTED.

Negligence (Third Cause of Action)

“The elements of an action for negligence are the existence of duty (the obligation to other persons to conform to a standard of care to avoid unreasonable risk of harm to them); breach of duty (conduct below the standard of care); causation (between the defendant’s act or omission and the plaintiff’s injuries); and damages.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 500.)

The instant Cross-Complaint alleges that Cho “failed to exercise reasonable care to prevent harm to CC-Ken by assault and battery upon CC-Ken at the hand of her employee Kim.” (Cross-Compl. ¶ 23.) The negligence cause of action fails to allege facts to establish that the alleged assault by Kim was foreseeable to Defendants Cho and Huiju Dol San Club, Inc.

In Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819, the California Supreme Court observed that “The duty of a proprietor of a business establishment to business invitees generally includes a duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.”

The motion is therefore GRANTED.

Intentional Infliction of Emotional Distress (Fourth Cause of Action)

“The elements of 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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

As argued by Cross-Defendants, the Cross-Complaint contains no allegations establishing the elements of this cause of action and does not allege conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.)

The motion is GRANTED.

Abuse of Process (Fifth Cause of Action)

The Cross-Complaint alleges that Plaintiff Hui Ja Cho’s complaint in this action is “a compilation of Cho’s self-serving, rambling, shameless canards that are unable to be proven at trial.” (Cross-Compl. ¶ 28.) The sole purpose of the underlying complaint is to act as a “preemptive attack” and to vex and harass Kenneth Oh. (Id.)

“To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.” (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)

Here, the Cross-Complaint fails to allege sufficient facts to establish the second element. “The essential elements of a cause of action for abuse of process are: 1) an ulterior purpose and 2) a willful act in … the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort. (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524-25.)

The motion is GRANTED.

The unopposed motion its entirety is GRANTED, as to each and every cause of action therein. Leave to amend is granted to August 5, 2016.