Case Number: BC517155    Hearing Date: April 25, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JESENIA FLORES-BERNAL,
Plaintiff(s),
vs.
CARDENAS MARKETS, INC., TEN-FOUR SECURITY, et al.
Defendant(s).

Case No.: BC517155

[TENTATIVE] ORDER SUSTAINING WITH LEAVE TO AMEND DEFENDANT’S DEMURRER AND MOTION TO STRIKE IS MOOT

Dept. 92
1:30 p.m.
April 25, 2014

Defendant’s Demurrer is Sustained with leave to amend. Defendant’s Motion to Strike is Moot. Plaintiff is ordered to file an amended complaint, within ten (10) days.

1. Facts
Plaintiff, Jesenia Flores-Bernal filed this action against Defendant, Caredenas Markets, Inc. and Ten-Four Security alleging causes of action for assault and battery, IIED, Negligence, Negligent Hiring, Supervision and Retention. Plaintiff alleges she was in Cardenas Market when employees of either or both Defendants Cardenas and Ten-Four Security proceeded to verbally and physically assault her.

2. Demurrer
Defendant demurs to the 1st – 4th causes of action, contending Plaintiff did not plead any facts to support the causes of action; and as a matter of law, Defendant is not vicariously liable for its employee’s alleged intentional torts, since they were outside the course and scope of their employment. An employer cannot be vicariously held liable for an employee’s sexual misconduct directed toward a third party.
No opposition has been filed to this motion.

First cause of action for Assault and Battery
A battery is defined as any intentional, nonconsensual, and harmful or offensive contact by
one person to another. Barouh v. Haberman (1994) 26 Cal.App.4th 40, 45-46. An assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present. Lowry v. Standard Oil Co. of California (1944) 63 CaI.App.2d 1, 7.
Plaintiff’s Complaint alleges that while Plaintiff was in Defendant’s property, its employees, unbeknownst to the Plaintiff, and without any provocation by the plaintiff, or any justification, proceeded to assault the Plaintiff thereby causing the Plaintiff to sustain permanent injuries. (Complaint, ¶16). Additionally, Plaintiff alleges that Defendant grabbed her by the arm and pepper sprayed her and knocked her down to the ground. (Id., ¶18) Finally, Plaintiff alleges that Defendant’s employees verbally and physically assaulted her inside the market. (Id., ¶21)
While Plaintiff has pled allegations constituting an assault and battery, it is unclear who did what Plaintiff’s Complaint fails to allege the specific employee or employees that committed the assault and/or battery. Therefore, the demurrer is sustained with leave to amend.

Second cause of action for Intentional Infliction of Emotional Distress
Plaintiff alleges that Defendant’s alleged verbal and physical assault and battery upon her caused extreme emotional distress. (Complaint ¶40)
The elements 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 suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 90. To be actionable, the underlying conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209. “Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.
“In evaluating whether the defendant’s conduct was outrageous, it is ‘not … enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.’ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Cochran, supra, 65 Cal.App.4th at 496.
While Plaintiff has alleged that Defendant’s conduct was “extreme and outrageous; ” she fails to assert the specific individual(s) that performed the extreme and outrageous conduct. Plaintiff does not distinguish whether Defendant or the security guard employees physical or verbal assault was the cause of the emotional distress. Accordingly, this Court must sustain the demurrer to Intentional Infliction of Emotional Distress Cause of Action with leave to amend.

Third cause of action for Negligence and Fourth cause of action for Negligent Hiring, Supervision and Retention
Plaintiff alleges that Defendant should have known that its employees were assaulting and battering others including Plaintiff and that Defendant had the duty to hire and train security guards to treat its customers with a safe environment. (Complaint, ¶¶ 50, 68)
Defendant first contends that Plaintiff’s third cause of action for Negligence and fourth cause of action for Negligent Hiring, Supervision and/or Retention are redundant since they allege the same facts to support the same damages. The causes of action as stated are somewhat duplicative and boilerplate therefore, should be amended to set forth distinct facts.
Similarly, Plaintiff fails to properly allege facts sufficient to state a claim for negligent hiring, retention, and supervision. It is not clear from the pleadings which of the employee’s actions or history Defendant should have known about, or that there was a risk “that the employee will act in a certain way and the employee does act in that way.” The pleadings are as conclusory. Plaintiff fails to plead facts sufficient to constitute a cause of action for Negligence and Negligent Hiring, Supervision and/or Retention. The demurrer is sustained with leave to amend.

Vicarious Liability
“In order for the assault and battery and lIED allegations to fall within the course and scope of employment, the conduct must ‘fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” Farmers Ins. Group v. County of Santa Clara (1995)11 CaI.4th 992, 1003. The employee’s misconduct must be “a generally foreseeable consequence of the [employer’s activity].” (Id. at p. 1004.) This rule reflects “the central justification for respondeat superior: that losses fairly attributable to an enterprise – those which foreseeably result from the conduct of the enterprise – should be allocated to the enterprise as a cost of doing business.” (Id.)
Plaintiff fails to set forth facts showing that the actions of Defendants be attributed to Defendant supermarket because the acts are not incidental to its employee’s duties as supermarket employees, nor are they a reasonably foreseeable consequence of Defendant’s enterprise as a supermarket. Plaintiff fails to allege specific facts of assault and battery and/or extreme and outrageous conduct that are attributable to a specific employee employed by Defendant.
In addition, the Complaint fails to allege any facts that Defendant “ratified” its employee’s assault and battery and/or lIED of plaintiff. For purposes of determining an employer’s liability for punitive damages, the California Supreme Court held that “ratification” generally occurs “where, under the particular circumstances, the employer demonstrates an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties.” College Hospital lnc. v. Superior Court (1994) 8 Cal.4th 704, 726. The Complaint alleges no facts demonstrating an intent by Defendant to adopt or approve its employee’s alleged attack of the plaintiff.
Moreover, in order for corporate ratification to occur, the actions constituting such ratification must be by an “officer, director, or managing agent of the corporation.” Id., citing to Civil Code § 3294, whose decisions are an expression of “corporate policy.” White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.

3. Motion to Strike
Defendant moves to strike Plaintiffs’ prayer for punitive damages and related allegations. The motion to strike is moot based on the above ruling to sustain with leave to amend . ¿Malice¿ means 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. Plaintiff’s complaint sufficiently alleges a severe attack, including an intentional grabbing of Plaintiff’s arm, spraying her with pepper spray and pushing her to the ground, which would otherwise be sufficient to constitute “malice.” However, as noted above, Plaintiff has failed to specify which defendants did what. Since the demurrer is sustained with leave to amend, this motion is moot.

Dated this 25th day of April, 2014

Elia Weinbach
Judge of the Superior Court