Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00440, Date: 2024-01-19 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00440, Date: 2024-01-19 Tentative Ruling

Case Number: 23GDCV00440 Hearing Date: March 15, 2024 Dept: E

Hearing Date: 03/15/2024 – 8:30am

Case No:23GDCV00440

Trial Date: UNSET

Case Name: DAVID HERNANDEZ, a minor, by and through his Guardian Ad Litem DAIZY VILLALVAZO v. CAMP BOB WALDORF, unknown entity; JEWISH BIG BROTHERS BIG SISTERS ASSOCIATION OF LOS ANGELES, a California corporation; JOHN DOE, an individual; and DOES 1 to 100, inclusive

[TENTATIVE RULING ON DEFENDANT’S DEMURRER TO FAC]

Moving Party: Defendant, Jewish Big Brothers Big Sisters Association of Los Angeles dba Camp Bob Waldorf (erroneously sued as two separate entities) (“JBBBS” or “Defendant”)

Responding Party: Plaintiff, David Hernandez, a minor, by and through his Guardian Ad Litem Daizy Villalvazo

RELIEF REQUESTED
Defendant, Jewish Big Brothers Big Sisters Association of Los Angeles dba Camp Bob Waldorf (erroneously sued as two separate entities) (“JBBBS” or “Defendant”), demurs generally and specifically under CCP §430.10(e) to Plaintiff’s fifth cause of action in the FAC for Negligent Hiring, Supervision, and Retention for failure to state facts sufficient to constitute a cause of action.

This Demurrer will be based upon this Notice, the attached Demurrer, the attached Memorandum of Points and Authorities, the Declaration of Sherri Matta, and exhibits therein filed and served concurrently herewith, upon all papers and pleadings on file herein, and upon such further oral and/or documentary evidence as may be presented at the time of the hearing.

Procedural
16/21 Day Lapse (CCP §12c and §1005(b)):Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

Moving Papers: Notice/Demurrer

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff filed the original Complaint on 03/03/2023.

On 1/19/2024, this Court heard JBBBS’s demurrer to the original Complaint and overruled the demurrer to the fourth cause of action and sustained the demurrer with leave to amend as to the fifth cause of action.

Plaintiff filed the FAC on 2/5/2024.

Plaintiff alleges that on or about July 19, 2019, Plaintiff was an enrolled camper at the subject premises and that during Plaintiff’s stay, Plaintiff was bullied for his appearance and/or birthmark and eating habits by Defendant John Doe. (FAC ¶8.) [Defendant John Doe is alleged to be an individual and direct employee of Defendant, JBBBS. (FAC ¶4.)] On said date, Plaintiff alleges that Defendant John Doe suddenly, and without warning, physically and verbally attacked and assaulted Plaintiff with such force that Plaintiff suffered injuries and damages. (FAC ¶8.)

The FAC alleges five causes of action. The first three causes of action for (1) Assault, (2) Battery, and (3) Intentional Infliction of Emotional Distress, are alleged only against Defendant John Doe. The fourth cause of action for Negligence is alleged against all Defendants. The fifth cause of action for Negligent Hiring, Supervision, and Retention is alleged against Defendants Camp Bob Waldorf, unknown entity; and Jewish Big Brothers Big Sisters Association of Los Angeles. [The demurrer to the FAC explains that Camp Bob Waldorf, unknown entity; and Jewish Big Brothers Big Sisters Association of Los Angeles is not two entities and that it is one entity, referred to in this demurrer as JBBBS]

On 2/16/2024, JBBBS filed a demurrer to the FAC.

On 2/28/2024, Plaintiff filed an amendment to the complaint, noting that Defendant John Doe was discovered to be Eric Brown.

JBBBS now demurs to the fifth cause of action for negligent hiring, supervision, and retention.

MEET AND CONFER
A party filing a demurrer “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 shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

Defendant alleges that a meet and confer occurred. (Matta Decl. ¶¶3-4.)

DEMURRER 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.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at 747.)

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 … 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.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

ANALYSIS

Fifth Cause of Action – Negligent Hiring, Supervision, and Retention
In JBBBS’s demurrer, it first points to the Court’s attention the allegations in Paragraph 41 in the original Complaint and the allegations in Paragraph 41 of the FAC for the Court to see the differences between the two.

Paragraph 41 in Original Complaint

Defendants CAMP BOB WALDORF, unknown entity; JEWISH BIG BROTHERS BIG SISTERS ASSOCIATION OF LOS ANGELES, a California corporation; and DOES 1 TO 100, inclusive, knew or should have known that Defendant JOHN DOE was incompetent and unfit and that his incompetence and unfitness created a particular risk to others, including Plaintiff.

Paragraph 41 in First Amended Complaint

Defendants CAMP BOB WALDORF, unknown entity; JEWISH BIG BROTHERS BIG SISTERS ASSOCIATION OF LOS ANGELES, a California corporation; and DOES 1 TO 100, inclusive, hired Defendant JOHN DOE as a camp counselor. At the time of hiring Defendant JOHN DOE, Defendants CAMP BOB WALDORF, unknown entity; JEWISH BIG BROTHERS BIG SISTERS ASSOCIATION OF LOS ANGELES, a California corporation; and DOES 1 TO 100, inclusive, knew or should have known that Defendant JOHN DOE was incompetent and unfit to perform work as a camp counselor due to his aggressive, inappropriate, and/or harmful behavior and/or tendencies, particularly toward minor camp goers, such as the minor Plaintiff. Defendants knew or should have known that Defendant JOHN DOE’s incompetence and unfitness created a particular risk to others, including Plaintiff, and that harm materialized when Defendant JOHN DOE bullied and/or humiliated the minor Plaintiff for his appearance and/or birthmark and eating habits, and physically and verbally attacked and assault the minor Plaintiff with such force that Plaintiff suffered injuries and damages.

JBBBS then argues that the amended allegations in ¶41 of the FAC don’t cure the defect from the previous ruling on the demurrer.

Strikingly, neither JBBBS nor Plaintiff make arguments that address the defect that the Court pointed out in its previous ruling on the demurrer to the original Complaint.

JBBBS argues that Plaintiff’s allegations are conclusory in the FAC: specifically, that JBBBS knew or should have known that John Doe was incompetent and unfit.

JBBBS also argues that the FAC states no factual basis supporting the conclusions that JBBBS knew or should have known of John Doe’s aggressive, inappropriate, and/or harmful behavior and/or tendencies and that the harm materialized when John Doe engaged in the subject conduct toward the Plaintiff.

Overall, JBBBS seems to be arguing that the FAC states no factual basis supporting the conclusions in the FAC.

The Court does not find this argument availing, particularly at the pleading stage.

The Opposition similarly fails to address the issue brought up in the Court’s prior ruling. The Opposition notes that Plaintiff added several allegations that JBBBS knew or should have known about John Doe’s incompetence, being unfit, and aggressive tendencies.

JBBBS again cites Doe v. Capital Cities. Neither party addresses the issues that the Court addressed with respect to why it sustained the demurrer with leave to amend with respect to the original Complaint.

In relevant part of Doe v. Capital Cities, an aspiring actor, who allegedly was drugged and then gang-raped by a casting director and four other men one Sunday at the casting director's home, sued the casting director, the four other men, and the casting director's employer; one of the actions asserted against the casting director’s employer was negligent hiring.

Plaintiff asserted that ABC’s (casting director’s employer) negligence in either hiring or supervising Marshall (casting director) resulted in the sexual assault and on that basis ABC could be held liable. In that case, the Court explained as follows:

Plaintiff alleged that ABC knew or should have known that “Marshall engaged in the purchase and use of serious, mind-altering illegal drugs, that defendant Marshall used his position at ABC to gain sexual favors, and that use of a 'casting couch' is common within the entertainment industry.” Given the harm that plaintiff suffered—a brutal sexual assault after having been surreptitiously drugged—the pleading allegations are insufficient to allege a cause of action. ABC's knowledge that Marshall personally used “serious mind-altering drugs” does not equate with knowledge that he would surreptitiously use drugs to place a prospective employee into a situation of helplessness before violently assaulting him. Nor does ABC's knowledge that Marshall used his position “to gain sexual favors” have material relevance to this matter. Use of the word “gain” is consistent with the quid pro quo form of sexual harassment⁹ but that is not the basis of plaintiff's claim. The “casting couch” allegation suffers from a similar infirmity. That is, knowledge that Marshall used his position of authority to extract or to coerce sexual favors is not knowledge that he would first drug and then attack a potential employee. In the context of negligent hiring, those are qualitatively different situations. In sum, the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way. Plaintiff has failed to allege those necessary facts.

(Doe v. Capital Cities (1996) 50 Cal.App.1038, 1054-55.)

As stated in the Court’s prior tentative:

The Court finds Defendant’s argument persuasive. Plaintiff only alleged that Defendant knew or should have known that Defendant John Doe was incompetent and unfit and that his incompetence and unfitness created a particular risk to others, including Plaintiff. (Compl. ¶41.)

Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [Citation omitted.]” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

Here, Plaintiff did not allege employer knew or should have known that hiring the employee created a particular risk or hazard, because Plaintiff did not allege what particular risk or hazard was created by hiring the employee, and Plaintiff did not allege that that particular harm materialized.

(Min. Order 1/19/2024, p. 11.)

With respect to the allegation in ¶41 of the FAC, Plaintiff adds all sorts of allegations with respect to what JBBBS knew or should have known about John Doe.

As to the allegations in the FAC, Plaintiff only cured half of what the Court previously addressed.

In ¶41 in the FAC, Plaintiff alleged, in relevant part, that “…Defendants knew or should have known that Defendant JOHN DOE’s incompetence and unfitness created a particular risk to others, including Plaintiff, and that harm materialized when Defendant JOHN DOE bullied and/or humiliated the minor Plaintiff for his appearance and/or birthmark and eating habits, and physically and verbally attacked and assault the minor Plaintiff with such force that Plaintiff suffered injuries and damages.”

As can be seen from these allegations, Plaintiff still fails to address the previous issue noted: what was the particular risk?

In fact, Plaintiff just used the term “particular risk,” as opposed to stating what the “particular risk” was.

Confusingly, Plaintiff’s FAC does address the particular harm that materialized. Plaintiff alleges that the harm materialized was that “…JOHN DOE bullied and/or humiliated the minor Plaintiff for his appearance and/or birthmark and eating habits, and physically and verbally attacked and assault the minor Plaintiff with such force that Plaintiff suffered injuries and damages.”

“It is often said that leave to amend a complaint should be liberally granted, particularly with respect to a party’s initial complaint.” (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091 citing Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “If there is any reasonable possibility that plaintiff can state a good cause of action, it is error and an abuse of discretion to sustain the demurrer without leave to amend.” (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091 citing Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896, 904.)

Here, it appears as if Plaintiff could cure the defects by alleging that the particular harm that materialized was the particular risk that employer knew or should have known about.

JBBBS’s demurrer to the fifth cause of action in the FAC is SUSTAINED WITH LEAVE TO AMEND GRANTED. Plaintiff will have 20 days from this order to file and serve a second amended complaint.