Case Number: 18STCV02009 Hearing Date: January 10, 2019 Dept: 3
CHARMAINE HEADSPETH,
Plaintiff,
vs.
STAR HOOKAH HOLLYWOOD, INC., et al.,
Defendant(s).
Case No.: 18STCV02009
[TENTATIVE] ORDER RE:
(1) DEMURRER TO COMPLAINT
(2) MOTION TO STRIKE
Dept. 3
1:30 p.m.
January 10, 2019
Defendant Star Hookah Hollywood, Inc.’s Demurrer is SUSTAINED without leave to amend as to the second cause of action; OVERRULED as to the fourth cause of action; and SUSTAINED without leave to amend as to the fifth cause of action.
Defendant Star Hookah Hollywood, Inc.’s Motion to Strike is GRANTED.
I. Background Facts
Plaintiff Charmaine Headspeath (“Plaintiff”) alleges that on April 24, 2017, she was injured at Defendant Star Hookah Lounge, Inc.’s (“Defendant”) business premises located at 6430 Hollywood Boulevard, Los Angeles, CA. (“Subject Premises.) Plaintiff claims that she sustained injuries after a hot coal fell on her. On October 23, 2018, Plaintiff filed a complaint against Defendant asserting causes of action for: (1) Negligence; (2) Intentional Infliction of Emotional Distress; (3) Premises Liability; (4) Strict Liability for Ultrahazardous Activity; and (5) Punitive Damages.
On November 30, 2018, Defendant filed the instant demurrer to the first, fourth, and fifth causes of action on grounds that each fails to state sufficient facts to constitute causes of action. The Court considered the moving, opposition and reply papers.
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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “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.)
III. Discussion
a. Meet and Confer
Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to 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. (See CCP § 430.41.) The Court notes that Defendant has fulfilled the meet and confer requirement prior to filing this demurrer. (See Alvarado Decl. ¶3.)
b. Second Cause of Action: Intentional Infliction of Emotional Distress
The Court notes that Plaintiff confusingly labeled the second cause of action for both NIED and IIED. (Bakh Decl.¶ 6; Opposition, Pg. 3:19-22.) Defendant contends that Plaintiff’s intended claim for IIED fails in that the Complaint does not sufficiently allege extreme or outrageous conduct. (Reply, Pg. 1:27-28 through Pg. 2: 1-9.)
Pursuant to Hughes v. Pair, a cause of action for intentional infliction of emotional distress 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. A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].)
In review of the allegations advanced in the complaint, notably Paragraphs 45 through 56; the Court finds that Plaintiff fails to establish a claim for IIED. Specifically, the allegations of “extreme and outrageous” conduct are insufficient and conclusory.
As such, Defendant’s demurrer to the second cause of action is SUSTAINED. Leave to amend will be granted only if Plaintiff makes a sufficient offer of proof.
c. Fourth Cause of Action: Strict Liability for Ultrahazardous Activities
Defendant demurs to the fourth cause of action for Strict Liability for Ultrahazardous Activities on grounds that the complaint fails to allege an ultrahazardous activity.
An activity is ultrahazardous if it (1) necessarily involves a risk of serious harm to others that cannot be eliminated by the exercise of due care; and (2) is not a matter of common usage. (See, e.g., Edwards v. Post Transportation Co. (1991) 228 Cal.App.3d 980, 983; Luthringer v. Moore (1948) 31 Cal.2d 489, 498.)
Because the issue of whether an activity is ultrahazardous depends on a number of factors on which evidence must be considered, it is not an issue that can be decided on demurrer. SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 906.
Based on the foregoing, Defendant’s demurrer to the fourth cause of action is OVERRULED.
d. Fifth Cause of Action: Punitive Damages
Defendant demurs to the fifth cause of action for Punitive Damages on the basis that there is no independent cause of action for such.
It has been established that “[i]n California there is no separate cause of action for punitive damages.” (McLaughlin v. Nat’l Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1163.)
Here, the Court notes that Plaintiff fails to proffer authority that establishes that punitive damages can be pleaded as a separate cause of action; and further notes that Plaintiff alleges punitive and exemplary damages in Paragraph 3 of the Prayer for Relief. As such, Plaintiff’s fifth cause of action for Punitive Damages fails.
Accordingly, the demurrer to the fifth cause of action is SUSTAINED without leave to amend.
e. Motion to Strike
Defendant moves to strike specified portions of the Complaint relating to punitive damages and attorneys’ fees.
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike either (1) any “irrelevant, false or improper matter inserted in any pleading”; or (2) 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.)
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 conduct intended to cause injury to a person, or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal, Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” is defined as despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) Lastly, “Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deceive a person of property, rights or otherwise cause injury. (Ibid.)
“‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’
[citation]”’ (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) They are “typically awarded for intentional torts” while “cases involving unintentional torts are far fewer.” (Id. at 1212.)
Here, the Court finds that Plaintiff fails to allege facts that meet the heightened threshold of establishing conduct warranting punitive damages. Additionally, Plaintiff has failed to plead sufficient facts establishing that the entity Defendant demonstrated an intent to ratify the conduct of any of its employees known to it to be oppressive, fraudulent, or malicious pursuant to Civ. Code §3294(b).
Further, the Court finds that Plaintiff has failed to plead facts establishing any right to recover attorneys’ fees. CCP §1021 allows for attorney’s fees specifically provided by statute or by agreement between the parties. (Code Civ. Proc. § 1021.) Here, Plaintiff has failed to allege any contractual language or statutory authority giving rise to attorneys’ fees.
Based on the foregoing, Defendant’s Motion to Strike is GRANTED in its entirety without leave to amend.
Moving Party is ordered to give notice.