2015-00179499-CU-MC

Kevin E. King vs. Christopher Peterson

Nature of Proceeding: Hearing on Demurrer and Motion to Strike

Filed By: Rhoan, Taylor W.

Defendants Michael Teel and Joyce Teel’s Demurrer to the First Amended Complaint is unopposed, taken as a concession to the merits, and is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action, and for uncertainty.

Defendants Michael Teel and Joyce Teel’s Motion to Strike claim for Punitive Damages is unopposed, taken as a concession to the merits, and is granted, with leave to amend.

This action stems from a May 2013 encounter between Plaintiff and non-demurring defendant Cal Force Security employees Christopher Peterson and Aaron Asley. Plaintiff alleges that he was ordered by the security guards to leave an AM/PM store and was followed by the guards to a Food Source store. He alleges that he was ambushed and tased with electrical darts. Plaintiff alleges that Defendants Officers Pullen and Walker placed him in the back of their patrol car to protect him from the security guards. He claims that Pullen and Walker improperly drafted a report showing he was the aggressor, and that they violated state and federal rights in failing to arrest the security guards. He also alleges that the security guards have a history of assaulting African-Americans, that he was tased because he is African-American and because police corruption and racism exists in the nation. Further he alleges that he never received a complete copy of the police report.

Moving defendants were brought into the case in the FAC as owners of Food Source. On July 11, 2018, the Court granted Joyce and Michael Teel’s motion to set aside

defaults entered against them.

The Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal. 2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Here, and additionally, the demurrer for failure to state facts sufficient to constitute a cause of action is sustained, with leave to amend, for the reasons stated in the moving papers. Plaintiffs pleadings state that the employees of the AM/PM market engaged the services of Cal Force. Furthermore, plaintiff’s complaint states it was Cal Force and the Sacramento Police Department who interacted with plaintiff and caused injuries. Plaintiff does not identify any employees of Food Source who were involved in the incident or anything about the Food Source property that contributed to the injuries. Defendants do not own or operate the shopping center or the common area where the incident occurred. (RJN, Ex. A and B.)

The demurrer for uncertainty is sustained, with leave to amend. Plaintiffs pleading is incomprehensible and uncertain as to which allegations are being levied against which defendants. No specific causes of actions are alleged or organized in the pleading in order for defendants to discern what is at issue. There are references to “discrimination and harassment claims” as well as a heading which states “Causes of Action and Various Tort Claims” which fail to specifically allege any tort and clarify as to which defendant(s) it is has been plead against.

Motion to Strike

A Motion to Strike may be used to excise “any irrelevant, false or improper matter inserted in any pleading.” (Code of Civil Procedure § 436(a).) It also may be used to “strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state.” (Id. at § 436(b).) Where there is a substantive defect affecting only a portion of a claim, the proper challenge is by motion to strike. (PH II,

Inc. v. Superior Court (1995) 33 Cal. App. 4”’ 1680, 1682-1683.) A Motion to Strike is the proper method to challenge a portion of a cause of action seeking an improper remedy. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385.) Plaintiff has alleged insufficient facts to support a claim for punitive damages against the moving defendants. The FAC alleges plaintiff was “followed to Food Source” (p. 8, l. 15), that “the owner of Food Source Michael Teel is liable under supervisory personnel for his role in knowing and being aware that he infact [sic] hired on [sic] incompetent and inadequate security guards to patrol the parking lot. His hired help took on a gangbanging mentality. Not only is his hired help seen on YouTube assaulting a black man. They also assaulted blacks inside the Food Source market some were shoplifting Joyce Teel is also owner.” (FAC, p. 16, ll. 21-28.) Plaintiff is required to state facts, not merely contentions, deductions or conclusions of fact or law. 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 are devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice. Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041.

In order to plead an entitlement to punitive damages a plaintiff must allege that the defendant is guilty of “oppression, fraud, or malice.” (Civil Code §3294(a).) “Malice” under Civil Code §3294(c)(1) means conduct intended to injure the plaintiff or

despicable conduct by the defendant with a willful and conscious disregard of others. Malice “based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) “‘[D]espicable’ connotes conduct that is ‘…so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’” (Id. [citations omitted].) Despicable conduct includes “that which is in blatant violation of law or policy.” (American Airlines, Inc. v. Sheppard, Mullin, Richter, & Hampton (2002) 96 Cal.App.4th 1017, 1050.) Indeed, “[e]ven ‘nonintentional torts’ may form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of other. [citation omitted] ‘Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable harm will result.’ [citation omitted].” (Skf Farms v. Superior Court (1984) 153 Cal.App.3d 902, 907.) As noted, the allegations of the FAC are insufficient to allege the requisite conduct.

Plainitff may file a Second Amended Complaint (“SAC”) on or before August 20, 2018. Response to be filed within 30 days of service of the Third Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.