LAUREL BEELER, Magistrate Judge.
Plaintiffs Michael Beal and Ashley Jackson (collectively, "Plaintiffs") are suing for injuries resulting from an alleged physical altercation with defendant Ares Papageorge on the premises of defendant Royal Oak Bar (the "Royal Oak") (collectively, "Defendants"), a bar in San Francisco, California, on the night of March 17, 2010. See First Amended Complaint ("FAC"), ECF No. 1-7 ¶ 3-8.
According to the First Amended Complaint, on March 17, 2010, at approximately 11:30 p.m., Plaintiffs entered the Royal Oak and sat at the bar to socialize over drinks. When Plaintiffs were finished, Mr. Beal attempted to retrieve his credit card from the bartender. FAC, ECF No. 1-7 ¶ 8. A dispute ensued: Mr. Beal believed that the bartender still had his credit card, while the bartender insisted that he already gave the card back to Mr. Beal. Id. The dispute escalated to a physical altercation when Mr. Papageorge intervened and confronted Mr. Beal. Id. Mr. Papageorge told Mr. Beal to "get the f-k out of my bar" and hit Mr. Beal on the head with a blunt object that Plaintiffs' believe was a baseball bat. Id. Mr. Papageorge continued to strike Mr. Beal's head and the back with the weapon while Mr. Beal was on the ground. Id. Mr. Beal's head bled profusely. Id. Mr. Papageorge also threatened to hit Ms. Jackson with the weapon when she attempted to stop the assault on Mr. Beal. Id. The police eventually arrived to the scene, and Plaintiffs subsequently filed a criminal complaint against Mr. Papageorge. Id.
Mr Beal was taken by ambulance to University of California — San Francisco Medical Center's Emergency Department where he received a CT scan and stitches for his head wound. Id. at ¶ 9. He claims that as a result of the attack he suffered from nausea, disorientation, and severe bleeding from his head. Id. He also had to return to the hospital a few days after the initial visit with symptoms of continued nausea, dizziness, visual impairment and headaches, all of which persisted for several months after the alleged incident. Id. The head wound has left a permanent scar. Id. Ms. Jackson asserts that she was traumatized by seeing Mr. Papageorge attack Mr. Beal and because of his threats to hit her, too. Id.
Plaintiffs filed this action in the San Francisco Superior Court on April 29, 2011. See Original Complaint, ECF No. 1-3. On June 7, 2013, after discussions about whether Plaintiffs would have to submit to an examination by Defendants' medical experts, the parties entered into a stipulation (the "June 7 Stipulation") that provides as follows:
June 7 Stipulation, ECF No. 1-13 ¶¶ 1-7.
Plaintiffs filed the operative First Amended Complaint on September 13, 2013. See FAC, ECF No. 1-7. In it, Plaintiffs bring the following four claims: (1) Battery against Mr. Papageorge; (2) Assault against Mr. Papageorge; (3) Intentional Infliction of Emotional Distress ("IIED") against Mr. Papageorge; and (4) Respondeat Superior liability against Royal Oak. See Id. ¶¶ 10-20. They seek special damages, general damages, punitive damages, reasonable attorney's fees, costs, and such other and further relief that the court deems just and proper. Id. at 6-7.
On October 23, 2013, Defendants removed the case to this court. See Notice of Removal, ECF No. 1. At the court's direction, see 2/13/2014 Minute Order, ECF No. 12; 2/26/2014 Order, ECF No. 17, Defendants answered Plaintiffs' FAC on March 3, 2014. See Answer, ECF No. 18. On March 27, 2013, Defendants filed a motion for judgment on the pleadings under Rule 12(c). See Motion, ECF No. 21; Memo, ECF No. 24.
"After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "[T]he same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog," because the motions are "functionally identical." Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A Rule 12(c) motion may thus be predicated on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to dismiss under Rule 12(c), the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). "A judgment on the pleadings is proper if, taking all of [plaintiff]'s allegations in its pleadings as true, [defendant] is entitled to judgment as a matter of law." Compton Unified School Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir. 2010).
Although a court generally is confined to the pleadings on a Rule 12(c) motion, "[a] court may, however, consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999). The Ninth Circuit has "extended the `incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (holding that the district court properly considered documents attached to a motion to dismiss that described the terms of plaintiff's group health insurance plan, where plaintiff alleged membership in the plan, his claims depended on the conditions described in the documents, and plaintiff never disputed their authenticity); Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002) (taking into account newspaper article containing allegedly defamatory statement under the "incorporation by reference" doctrine where it was "central" to plaintiff's claim, defendant attached it to the motion for judgment on the pleadings, and plaintiff did not contest its authenticity)).
Through their motion, Defendants ask the court to grant judgment on the pleadings in their favor with respect to Plaintiffs' third claim (and some of the specific allegations made in relation to it), their fourth claim, and their prayer for attorney's fees and punitive damages. See generally Memo, ECF No. 24. Defendants do not challenge Plaintiffs' first and second claims. Each of Defendants' challenges is addressed in turn below.
Plaintiffs' third claim is against Mr. Papageorge for IIED. See FAC, ECF No. 1-7 ¶¶ 16-18. In California, "[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;
Defendants argue simply that Plaintiffs' IIED claim fails because the June 7 Stipulation bars Plaintiffs from claiming severe and extreme mental and emotional distress. See Motion, ECF No. 21 at 1; Memo, ECF No. 24 at 4.
The court, however, does not agree with Defendants' broad reading of the June 7 Stipulation. For one, the language is clear that what Plaintiffs are barred from doing is bringing a claim for mental and emotional distress that is based on depression, PTSD, paranoia, or related psychological conditions or that relies upon expert testimony. See June 7 Stipulation, ECF No. 1-13 ¶ 6. This reading also makes sense given that the June 7 Stipulation was entered into at the same time the parties were arguing over Plaintiffs' proposed First Amended Complaint, yet the June 7 Stipulation, which was filed a few months before the First Amended Complaint was filed, says nothing about an IIED claim or general allegations of severe emotional distress. See generally id. Finally, as Plaintiffs correctly point out in their opposition, a plaintiff need not submit expert testimony to prove an IIED claim; a plaintiff may instead rely only upon lay witness testimony is he or she so chooses.
Accordingly, the court
Plaintiffs' fourth claim is against the Royal Oak for respondeat superior liability. Respondeat superior is properly imposed when the tortfeasor was the "servant" of the party against whom liability is sought. Krueger By and Through Krueger v. Mammoth Mountain Ski Area, Inc., 873 F.2d 222, 223 (9th Cir. 1989). Generally, the terms "master-servant" are considered synonymous with "employer-employee." Id.; see Restatement (Second) of Agency § 220(1) (1958). "[A]n employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts." Lisa M. v. Henry Mayo Newhall memorial Hospital, 12 Cal.4th 291, 297 (Cal. Ct. App. 1995).
Defendants argue that respondeat superior cannot be the basis for a separate, independent claim. Motion, ECF No. 21 at 1-2; Memo, ECF No. 24 at (citing Lisa M., 12 Cal. 4th at 296). Plaintiffs concede that this is true, see Opposition, ECF. No. 26 at 9 (citing Animal Legal Defense Fund v. HVFG LLC, No. C 12-05809 WHA, 2013 WL 3242244, (N.D. Cal. June 25, 2013) (dismissing respondeat superior cause of action without leave to amend for this reason)), but they argue that they nevertheless may rely upon respondeat superior as a theory of liability against the Royal Oak for the underlying tort claims. To accomplish this, the court will dismiss Plaintiffs' fourth claim against the Royal Oak for respondeat superior liability and will construe Plaintiffs' first three claims against Mr. Papageorge for battery, assault, and IIED as also having been brought against the Royal Oak under a respondeat superior theory.
Defendants' attempt to avoid such an outcome fails. Citing deposition testimony, Defendants also argue that it is futile to keep the Royal Oak in this case because Mr. Papageorge was not an employee or agent of the Royal Oak at the time of the incident, so respondeat superior liability is not available here. See Memo, ECF No. 24 at 6-7. Such information, however, clearly goes beyond the four corners of the pleadings and contradicts Plaintiffs' allegation that Mr. Papageorge was an employee or agent of the Royal Oak, and the court declines at this time to convert Defendants' motion for judgment on the pleadings into one for summary judgment.
Accordingly, the court
In their prayer for relief, Plaintiffs seek, among other things, punitive damages and attorney's fees. Defendants argue that Plaintiffs are not entitled to punitive damages from the Royal Oak or attorney's fees. Motion, ECF No. 21 at 2; Memo, ECF No. 24 at 8-9.
As for punitive damages, Defendants argue that Plaintiffs do not allege a basis for punitive damages against the Royal Oak, as Mr. Papageorge was not an employee or agent of the Royal Oak and the time of the incident. See Memo, ECF No. 24 at 8. But as explained above, Mr. Papageorge's status is a disputed issue of material fact, and the court will not covert Defendant's motion into one for summary judgment. This means that the court cannot rule at this time that Plaintiffs are barred from seeking punitive damages from the Royal Oak.
As for the attorney's fees, although they cite no legal authority, Defendants point out that under the "American Rule," each party is responsible for paying its own attorney's fees unless an applicable statutory or contractual provision allows for the assessment of those fees against the other party, and argue that Plaintiffs cannot identify any such provision.
In their opposition, Plaintiffs argue simply that "California [law] provides that `a prevailing party is entitled as a matter of right to recover costs in any action or proceeding,' including for those in tort based on the discretion of the Court." Opposition, ECF No. 26 at 10 (quoting Cal. Code Civ. Proc. § 1032(b) and citing Berkla v. Corel Corp., 302 F.3d 909, 919-20 (9th Cir. 2002) (discussing the award of attorney's fees to party prevailing on a contract claim).
Plaintiffs' argument is not persuasive. To explain: California Code of Civil Procedure § 1032(b)—the only statute cited by Plaintiffs—provides that, "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." California Code of Civil Procedure § 1033.5(a), in turn, specifies which items are allowable as costs under § 1032, and Subsection (a)(10) provides that attorney's fees, when authorized by contract, statute, or law, are allowable as costs under § 1032. See Co-Investor AG v. Fonjax, Inc., No. C 08-1812 SBA, 2010 WL 1292767, at *4 (N.D. Cal. Mar. 31, 2010) ("Attorneys' fees are not `costs' under section 1033.5 unless an award of fees is authorized by contract, statute or law.") (citing Cal. Code Civ. Proc. § 1033.5(a)(10)). Plaintiffs fail to cite to any contract, statute, or law that allows them to recover attorney's fees as costs under § 1033.5. See Opposition, ECF No. 26 at 10. Instead, they argue that § 1032 allows a prevailing party to recover costs under § 1033.5 and they suggest that § 1032 also that satisfies § 1033.5's requirement that a statute allow attorney's fees to qualify as a cost under section 1032. But it is illogical to allow a law requiring a specific statute authorizing attorney's fees to qualify as costs, to also satisfy its own requirement, and Plaintiffs cite no other authority holding otherwise.
Accordingly, the court
For the reasons stated above, the court
