Judge: Anne Hwang, Case: 22STCV17616, Date: 2024-04-18 Tentative Ruling

Case Number: 22STCV17616    Hearing Date: April 18, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On May 27, 2022, Plaintiff Victor Manuel Leon, Jr. (“Plaintiff”) filed a complaint against Defendants La-Z-Boy, Inc. and Does 1 to 50 for negligence surrounding an alleged beating by La-Z-Boy Inc. employees.

On June 21, 2023, Plaintiff attempted to file a first amended complaint which was rejected. (See Notice of Rejection, 6/23/23.) On February 14, 2024, the Court granted a joint stipulation providing leave for Plaintiff to file a second amended complaint (“SAC”).

On February 15, 2024, Plaintiff filed the operative SAC against Defendants La-Z-Boy Incorporated, Home Delivery Link Inc., On 2 the Next Logistix, LLC, Kristin Tyler James, Anthony Charles Scandrick, and Does 1 to 50, asserting the following causes of action: negligence, battery, assault, intentional infliction of emotional distress, and vicarious liability.

Defendant Home Delivery Link, Inc. (“HDL”) now demurs to the entire SAC for failing to state facts to constitute causes of action and for uncertainty. Plaintiff opposes and HDL replies.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).  

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

According to the Declaration of Holly Gagas, counsel for HDL spoke to Plaintiff’s counsel twice regarding this demurrer. Therefore, it appears the meet and confer requirement has been met.

JUDICAL NOTICE

The Court takes judicial notice of the files within its record. (Evid. Code § 452(d).)

ANALYSIS

Here, the SAC alleges that on May 21, 2022, Plaintiff was at his job, working as a valet attendant in an apartment complex. (SAC ¶ 11.) That day, two La-Z-Boy employees, Defendants Scandrick and James, arrived at the complex in a truck to deliver furniture. (Id. ¶ 12.) Since Plaintiff was a valet attendant, he asked the employees to move the truck off the driveway, but they refused. Instead, they began making their deliveries in the complex. (Id. ¶ 15.) While they were doing this, Plaintiff moved the La-Z-Boy truck on his own “15 to 25 feet forward in an effort to allow for continued safe and reasonable ingress and egress to and from the Subject Property.” (Id. ¶ 20.) When Scandrick and James returned, they saw that Plaintiff had moved their truck and began to beat him. (Id. ¶ 22.)

In pertinent part, Plaintiff alleges that “Defendants Scandrick and James were working and providing services in the course and scope of their employment for or on behalf of Defendant La-Z-Boy, and, by extension, for or on behalf of Defendants HDL and O2N, all the while operating Defendant La-Z-Boy’s delivery truck while wearing La-Z-Boy® labeled uniforms, providing physical delivery of Defendant La-Z-Boy’s furniture and other goods and services to LaZ-Boy’s customer(s) . . . .” (SAC ¶ 25.)

HDL demurs on the basis that the SAC explicitly states that Scandrick and James were employees of La-Z-Boy. Since there are no allegations to support that Scandrick and James were agents of HDL, there is no basis for liability.

1. Liability for Torts of Independent Contractor

“As a general rule, a hirer of an independent contractor is not liable for physical harm caused to others by the act or omission of the independent contractor. [Citations.] There are multiple exceptions to the rule, however, one being the doctrine of nondelegable duties. [Citation.] As explained in Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 146, 62 Cal.Rptr.3d 479: ‘ “A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor.” [Citation.] A nondelegable duty may arise when a statute or regulation requires specific safeguards or precautions to ensure others' safety. [Citation.]’” (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 400.)

A carrier owes a nondelegable duty when it “undertakes an activity (1) which can be lawfully carried on only under a public franchise or authority and (2) which involves possible danger to the public.” (Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475, 1486.) “Were the rule otherwise, a carrier could escape liability for the negligence of its independent contractors, thus reducing the incentive for careful supervision and depriving those who are injured of the financial responsibility of those to whom the privilege was granted.” (Ibid.) The nondelegable duty does not attach “only when the carrier is ‘not regulated’” by a public franchise or authority. (Ibid.)

Here, the SAC does not allege facts that HDL was a carrier with a non-delegable duty under Serna. Plaintiff also does not allege any facts explaining the relationship between HDL and La-Z-Boy to support why it is liable for the acts of La-Z-Boy’s employees. Though Plaintiff argues he has sufficiently plead that each defendant was the agent/employee of each other, this is conclusory, and is not supported by the other facts in the SAC. (See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-36 [where general allegations and specific allegations conflict or are inconsistent, the specific allegations in the complaint control over the inconsistent general allegation].)

The causes of action for battery, assault, intentional infliction of emotional distress against HDL are based solely on a respondeat superior theory. Therefore, without facts to support vicarious liability as to HDL, the demurrer to these causes of action is sustained.

2. Negligent Hiring, Supervision, and Retention 

The first cause of action for negligence alleges negligent hiring, supervision, and retention.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p. 1054.) To be liable for negligent supervision and hiring, there must be a connection between the employment and injury. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. (Id. at 1339.) “The tort has developed in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Id. at pp. 1339-1340.) 

Here, because the allegations show that HDL did not employ Scandrick and James, the SAC fails to show that it negligently hired, supervised, or trained them. Therefore, the demurrer is sustained.

3. Vicarious Liability – Scope of Employment

HDL also argues that the SAC fails to state sufficient facts because the alleged torts of Scandrick and James were committed outside the scope of employment.[1]

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment.¿ (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.)¿ An employee’s willful or malicious tort may fall within the scope of employment even without the employer’s authorization. (Flores v. AutoZone West, Inc.¿(2008) 161 Cal.App.4th 373, 379.) Whether an employee's wrongful acts were committed during the scope of employment is judged by a two-prong, alternative “test”: (1) whether the act was either required by the employer or “incidental” to the employee's duties (“nexus” test); or (2) whether the employee's misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”).  (Montague, supra, 223 Cal.App.4th at 1521.)  

“The employee need not have intended to further the employer's interest for the employer to be liable if there is a ‘causal nexus’ between the intentional tort and the employee's work.” (Crouch v. Trinity Christian Center of Santa Ana, Inc.¿(2019) 39 Cal.App.5th 995, 1015.) This nexus is not simply “but for” causation. (Lisa M. v. Henry Mayo Newhall Memorial Hospital¿(1995) 12 Cal.4th 291, 298.) “The connection or causal nexus required for respondeat superior liability is the tort must have been engendered by or arise from the work. [Citation omitted.] The required connection has been described as (1) ‘the incident leading to injury must be an “outgrowth” of the employment’; (2) ‘the risk of tortious injury is “inherent in the working environment” ’; (3) the risk of tortious injury is  ‘ “typical of or broadly incidental to the enterprise [the employer] has undertaken” ’ or (4) ‘the tort was, in a general way, foreseeable from the employee's duties.’” (Id. [Citations omitted].)  

 “[E]mployers have been held liable for the wrongful and unauthorized acts of their employees where they were committed in the course of a series of acts of the agent which were authorized by the principal.” (Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1382.)

Here, Plaintiff has sufficiently alleged that the tortious conduct was committed within the course and scope of their employment because it took place while defendants were making deliveries for La-Z-Boy. (SAC ¶ 25.) However, the demurrer is still sustained since Plaintiff’s allegations do not show a sufficient connection with HDL.

CONCLUSION AND ORDER

Therefore, the Court sustains HDL’s demurrer to Plaintiff’s SAC with leave to amend.

HDL shall provide notice of the Court’s ruling and file a proof of service of such.