Judge Audra Mori, Case 22STCV25634 2023-03-03 Tentative Ruling

Plaintiff Gina Graham (“Plaintiff”) filed this action against defendants the Salvation Army and Emily Doe (“Emily”) for injuries Plaintiff sustained when she was allegedly assaulted and physically attacked by Emily while at the Salvation Army’s store. Plaintiff alleges that Emily was the Salvation Army’s employee and was acting within the scope of her employment at the time of the incident. The Complaint alleges causes of action for (1) assault against Emily, (2) battery against Emily, (3) intentional infliction of emotional distress against Emily, (4) negligence against all defendants, and (5) negligent hiring, supervision, and retention against the Salvation Army.

The Salvation Army now demurs to the complaint arguing the fourth and fifth causes of action asserted against it fail to state sufficient facts to constitute a claim against it. Plaintiff opposes the demurrer, and Salvation Army filed a reply.

Additionally, the Salvation Army moves to strike portions of the complaint relating to Plaintiff’s requests for pre-judgment interest and for attorney fees. No opposition to the motion to strike has been filed. On February 24, 2023, the Salvation Army filed a Notice of Non-Opposition to the motion.

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). (CCP §§ 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.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The Salvation Army fulfilled this requirement prior to filing the demurrer. (Demurrer Rand Decl. ¶¶ 2-4.)

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) There is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Concerning holding an employer liable for an employee’s actions, “[t]he respondeat superior doctrine is to be given a broad application…” (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434.) “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)

Here, the Complaint alleges that Emily was the “direct employee” of the Salvation Army, (Compl. at ¶ 4), and states the following regarding the alleged incident:

8. On or about August 12, 2020, Plaintiff was a patron at the subject premises. As Plaintiff walked within the subject premises, she encountered Defendant EMILY DOE as she was unloading merchandise from a crate and/or similar object onto a rack. Plaintiff was unable to move past the crate and/or similar object being used by Defendant EMILY DOE and politely asked her to move it. Defendant became aggravated by Plaintiff’s request. Defendant EMILY DOE, suddenly and without warning, physically attacked and assaulted Plaintiff by striking her with the cart and/ or similar object with such force that Plaintiff suffered injuries and damages.

9. The force of Defendant EMILY DOE’s assault to Plaintiff’s body caused Plaintiff to suffer physical injuries and damages.

10. At no time before, during or after the attack did Plaintiff batter or attempt to batter Defendant EMILY DOE.

11. As a result of the aforementioned conduct, Plaintiff was physically and psychologically damaged, incurred medical bills, sustained disability and had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.

(Id. at ¶¶ 8-11.) Further, the Complaint alleges that Emily was acting within the course and scope of her employment when the incident occurred. (Id. at ¶¶ 13, 21.) Regarding the negligence claim, the Complaint states:

33. Defendants, and each of them, had an affirmative legal duty to use due care for the protection of Plaintiff against unreasonable risk of harm.

34. Defendants, and each of them, formed a special relationship between the employees and subject premises resulting in the affirmative duty on the employees to take all reasonable steps to protect the occupants of the subject premises.

35. Additionally, because of the special relationship between Plaintiff and the subject premises, Defendants THE SALVATION ARMY, a California corporation; and DOES 1 TO 100, inclusive, had a duty to control Defendant EMILY DOE and protect Plaintiff from physical and mental harm.

36. Defendants, and each of them, breached their duty of care for the protection of Plaintiff when Defendant EMILY DOE in the presence of others threatened to touch and/or grab Plaintiff in a harmful manner such that it reasonably appeared that Defendant EMILY DOE was about to carry out the threat; Defendant EMILY DOE, suddenly and without warning, physically attacked and assaulted Plaintiff by striking her with the cart and/ or similar object with such force that Plaintiff suffered injuries and damages.

The Salvation Army contends that because it did not itself harm Plaintiff, Plaintiff must establish that a special relationship existed. However, as stated above, the Complaint alleges that Plaintiff was a patron at the Salvation Army’s store at the time of the incident. The Courts have found that a special relationship exists between a business establishment and its customers, patrons and invitees. (See e.g.,

(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 244 [“it is undisputed that defendant, a bar proprietor, stood in a special relationship with plaintiff, its patron and invitee,” and hence owed duty to protect patron from foreseeable acts of third parties].) Moreover, the Complaint alleges that the Salvation Army’s employee, Emily, while in the course and scope of their employment, assaulted and physically attacked Plaintiff in the Salvation Army’s store. While the complaint’s allegations are stated in broad, general terms, they are sufficient to allege a cause of action for negligence against the Salvation Army based on its employee’s actions. (See Jeewarat, 177 Cal.App.4th at 434; see also Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [“The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.”].)

Although the Complaint also pleads that a special relationship was formed between the employees and the subject premises and between Plaintiff and the subject premises, “[a] plaintiff is permitted to plead alternative inconsistent theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.) Because a demurrer may only be sustained if the challenged claim fails to state a cause of action under any possible legal theory, the Court must overrule the demurrer as to the negligence claim. (Sheehan v. San Francisco 49ers, Ltd (2009) 45 Cal. 4th 992, 998.)

The Salvation Army’s demurrer to the Complaint is overruled as to the fourth cause of action.

The elements of a negligent hiring and retention cause of action are: (1) at the time of the hiring, the employee had certain characteristics that would make him unsuitable for the position, or lack certain requisite skills; (2) at the time of the hiring, the employer must have known of these characteristics or lack of skills; (3) said characteristics or lack of skills caused the plaintiff's injury. (CACI No. 426.)

An employer may be liable to a third party for negligently hiring or retaining an unfit employee. (J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal. App. 5th 1142, 1163.) “There are ‘two elements necessary for a duty to arise in negligent hiring and negligent retention cases—the existence of an employment relationship and foreseeability of injury.’ [Citation.]“ (Dent v. National Football League (2018) 902 F.3d 1109, 1122 [applying California law].) An employer’s duty “is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214 [emphasis in original].)

The principal may be negligent because he has reason to know that the ... agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.... [¶] [. . .] Liability results ... not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. ...’ [Citations.]

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] 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.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

41. Defendants THE SALVATION ARMY, a California corporation; and DOES 1 TO 100, inclusive, knew or should have known that Defendant EMILY DOE was incompetent and unfit and that her incompetence and unfitness created a particular risk to others, including Plaintiff.

43. As a result of the conduct of Defendants, and each of them, the Plaintiff was physically and psychologically damaged, …

As the Salvation Army argues, there are no facts in the Complaint to show that the Salvation Army knew or should have known of the unfitness of Emily before the incident. Further, there are no allegations showing that the Salvation Army knew or should have known that Emily presented an undue risk of harm to Plaintiff in connection with the incident or the work Emily was performing. (Federico, 59 Cal.App.4th at 1214; Doe, 50 Cal.App.4th at 1054.) Lastly, while the complaint alleges that Emily was incompetent and unfit, the Complaint fails to allege what characteristics made Emily unsuitable for the position Emily was working in.

Based on the foregoing, the demurrer is sustained as to the fifth cause of action.

The burden is on Plaintiff to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiff requests leave to amend the Complaint. Based on Plaintiff’s arguments concerning the incident and Emily’s conduct, the Court finds there is a reasonable possibility the Complaint can be cured to state a claim for negligent hiring, retention, and supervision.

The Salvation Army’s demurrer is sustained to the fifth cause of action with twenty (20) days leave to amend.

The Salvation Army further moves to strike the following language from paragraphs 11 and 17 of the Complaint: “had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.” In addition, the Salvation Army moves to strike the request for prejudgment interest from the Complaint, arguing that Plaintiff is not entitled to prejudgment interest because her damages are not certain.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

CCP § 1021 provides, “[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”

Here, the Complaint does not include a prayer for attorney fees. Nonetheless, at paragraphs 11 and 17, Plaintiff alleges that as a result of the incident, Plaintiff “had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.”[1] Plaintiff does not oppose the motion, and there are otherwise no allegations in the Complaint suggesting that Plaintiff is entitled to recover attorney fees in this action. Consequently, the allegations pertaining to Plaintiff having to retain an attorney and incur legal costs are irrelevant and improper.

The Salvation Army’s motion to strike is granted without leave to amend as to the following portions of paragraphs 11 and 17: “had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.”

“The test for recovery of prejudgment interest under [Civil Code] section 3287, subdivision (a) is whether defendant actually know[s] the amount owed or from reasonably available information could the defendant have computed that amount. [Citation.]” [Citations.] “The statute [Civil Code, § 3287] does not authorize prejudgment interest where the amount of damage, as opposed to the determination of liability, ‘depends upon a judicial determination based upon conflicting evidence and is not ascertainable from truthful data supplied by the claimant to his debtor.’ [Citations.]” [Citation.] Thus, where the amount of damages cannot be resolved except by verdict or judgment, prejudgment interest is not appropriate.

Here, the Complaint includes a prayer for general and special damages. The Salvation Army is correct that prejudgment interest is not permitted as far as Plaintiff seeks general damages. However, to the extent that Plaintiff claims special/economic damages prejudgment interest is permitted in the discretion of the factfinder. (See Civ. Code § 3288; see also Greater Westchester Homeowners Ass'n v. City of Los Angeles (1979) 26 Cal.3d 86, 102-03 [“Using recognized and established techniques a fact finder can usually compute with fair accuracy the interest on a specific sum of money, or on property subject to specific valuation… However, damages for the intangible, noneconomic aspects of mental and emotional injury are of a different nature.”]; In re Pago Pago Aircrash of January 30, 1974 (C.D. Cal. 1981) 525 F.Supp. 1007, 1018 [“The Greater Westchester Court, therefore, made it clear that the trier of fact, in its discretion, may award prejudgment interest on those portions of the verdict that constitute recovery for paid medical expenses, paid funeral expenses, and lost property.”].) In relevant part, the Complaint alleges that as a result of the incident, Plaintiff incurred medical bills. Accordingly, Plaintiff seeks special damages and may be entitled to recover prejudgment interest.

Hon. Audra Mori

Judge of the Superior Court

[1] The Court notes that paragraphs 23, 39, and 43 similarly allege that Plaintiff has incurred legal costs as a result of the incident. However, the Salvation Army is not moving to strike these paragraphs, and thus, the Court makes no finding regarding paragraphs 23, 39, and 43.