Judge Barbara M. Scheper, Case Number: 24STCV12736, Date: 2024-10-18 Tentative Ruling

Judge: Barbara M. Scheper, Case: 24STCV12736, Date: 2024-10-18 Tentative Ruling

Case Number: 24STCV12736 Hearing Date: October 18, 2024 Dept: 30

Dept. 30

Calendar

Nguyen vs. Solomon, et. al., Case No. 24STCV12736

Tentative Ruling re: Defendants’ Demurrer to First Amended Complaint

Defendants Adam Lavoy and Maxim Healthcare Services, Inc. (Defendants) demur to the First Amended Complaint (FAC) of Plaintiff Kim Nguyen. The demurrer is overruled. Defendants are ordered to answer within ten (10) days of today’s date.

A demurrer is sustained where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., 430.10, subd. (e).) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Yalung v. State (2023) 98 Cal.App.5th 71, 80.) In reviewing a complaint’s legal sufficiency, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Tit. Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, a court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations pleaded or the difficulty a plaintiff may have in proving his allegations. (Ion Equipment Corporation v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

Plaintiff Kim Nguyen alleges in her FAC that Defendant Natay Solomon assaulted her while under the supervision of Defendant Adam Lavoy, employed by Defendant Maxim Healthcare Services, Inc. (FAC ¶ 16.) Nguyen alleges that Lavoy was responsible for Solomon at the time of the attack. (Id. ¶ 18.) She further alleges that Maxim and Lavoy had a duty to assess the risk to others when setting the daily agenda for Solomon. (Id. ¶ 14.) Maxim and Lavoy (Defendants) demur to Plaintiff’s causes of action for negligence and negligent hiring on the ground that Defendants owed Plaintiff no duty.

To state a cause of action for negligence, the plaintiff must “demonstrate a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 [internal quotations omitted].) Generally, each person has a duty to exercise reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).) In the absence of a statutory exception to this general rule, courts may only recognize an additional duty of care when it is “clearly supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d 108, 112.) Factors to consider include “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Id. at p. 113.)

“An employer may be liable to a third party for negligently hiring or retaining an unfit employee.” (Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1108.) An employer may be found negligent if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

Defendants argue they owed Plaintiff no duty because Plaintiff was not an identifiable, foreseeable victim. While a person generally owes no duty to control the conduct of another or warn those endangered by such conduct, courts may still recognize a legal duty “where a special relationship exists between the defendant and either the person whose conduct needs to be controlled or the foreseeable victim of the third party’s conduct.” (Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 955.) “A special relationship between the defendant and the victim is one that gives the victim a right to expect protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that entails an ability to control the third party’s conduct.” (T.L. v. City Ambulance of Eureka, Inc. (2022) 83 Cal.App.5th 864, 883 [internal quotations omitted].) If a court identifies an affirmative duty to protect, it must also “consult the factors described in Rowland to determine whether relevant policy considerations counsel limiting that duty.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209.)

A special relationship exists between a defendant and a dangerous third party where the defendant takes charge of a person whom they know or should know is likely to cause bodily harm to others if not controlled. (Smith v. Freund (2011) 192 Cal.App.4th 466, 473.) However, such a duty is owed to the plaintiff only if the special relationship also “entails a duty to control the third party’s conduct for the benefit of the plaintiff or the class of persons to which the plaintiff belongs.” (Shalghoun v. North Los Angeles County Regional Center, Inc. (2024) 99 Cal.App.5th 929, 945.) The defendant must have an ability to control the third party in such a way that would “meaningfully reduce the risk of the harm that actually occurred.” (Ibid.) An ability to control may be found in the nature of the relationship itself or authority over the environment where the plaintiff is injured. (Id. at p. 945–946.)

Here, Plaintiff alleges that Defendants knew of Solomon’s violent history and potential for harm to others. (FAC ¶ 11.) Plaintiff thus alleges a special relationship between Solomon and Defendants under Smith because Defendants took charge of Solomon and knew of his likelihood for violent behavior. Plaintiff further alleges Defendants had complete control over when and where Solomon could leave his residence and enter the community. (Id. ¶ 13.) These allegations allow for a reasonable inference that Defendants had some control over the third party’s conduct. Indeed, Defendants’ control over Solomon’s schedule and movements demonstrates an ability to meaningfully reduce the risk of the harm that occurred, as required by Shalghoun. Plaintiff also alleges that Defendants had a duty to act reasonably in ensuring that Solomon would not harm himself or other members of the public while supervised. (Id. ¶ 18.) This class of potential plaintiff is not as broad as Defendants contend, as it is limited to times when Solomon is under supervision while in public spaces. Thus, Plaintiff has pleaded facts sufficient to support a duty owed by Defendants.

Having found a duty to protect, the Court must analyze the Rowland factors to determine if the duty should be limited for public policy reasons. (Brown, supra, at p. 209.) These factors fall into two categories. The first group concerns foreseeability while the second focuses on public policy concerns. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629.) The Court will address each group in turn.

The first factor concerns the foreseeability of harm to the plaintiff. Defendants argue that the harm to Plaintiff could not be foreseen because there are no allegations of Solomon making violent threats that day or being violent immediately before the attack. However, Plaintiff alleges that Defendants “knew or should have known of Solomon’s history of violent outbursts and his propensity to strike out at other people without warning.” (FAC ¶ 11.) These allegations, taken as true, show the foreseeability of harm to a pedestrian near Solomon. Defendants concede that the second Rowland factor is met because Plaintiff has pleaded that she suffered an injury. The third factor involves the connection between Defendants’ conduct and the injury. Defendants contend that they could not stop Solomon from exiting the facility because he had a right to walk outside. This reduces the connection between Defendants’ conduct and Plaintiff’s injury. However, Plaintiff alleges that Defendants are still in charge of supervision. (Id. ¶ 9.) Any lack thereof is connected to Plaintiff’s injury. Additionally, Lavoy allegedly failed to intervene once Solomon began attacking Plaintiff. (Id. ¶ 18.) Thus, the first three Rowland factors weigh in favor of imposing a duty.

The second group of factors directly concern public policy. The fourth factor addresses the moral blame attached to Defendants’ conduct. Defendants allowed Solomon to walk on a public sidewalk. While Plaintiff alleges that Defendants were aware of Solomon’s violent history, she does not allege any violent threats made that day. (Id. ¶ 11.) Thus, on the face of the FAC, allowing Solomon to walk in the first place appears caring toward a patient and not morally blameworthy. However, Plaintiff also alleges that Lavoy failed to stop Solomon once he began attacking her. (Id. ¶ 18.) If he supervised Solomon as alleged, such actions are morally blameworthy. (Ibid.) Thus, this factor also weighs in Plaintiff’s favor.

The fifth factor concerns how imposing a duty would prevent future harm. Plaintiff alleges that Lavoy accompanied Solomon on his walk but did nothing to stop his attack. (Ibid.) Imposing a duty here may not prevent future attacks from occurring, but it could mitigate the severity of the harm suffered by encouraging a caretaker to intervene. Thus, the fifth factor favors Plaintiff.

The sixth factor accounts for any increased burden on the defendant and consequences for the community. Defendants argue that imposition of a duty could have a chilling effect on caretakers for the mentally disabled: they might refuse to take patients into public spaces for fear of liability. This could harm the quality of life for disabled persons who pose no danger to the public. The Court takes this argument seriously, and this factor weighs in favor of Defendants.

However, the seventh and final factor concerns the availability and cost of insurance for the risk involved. Plaintiff notes that professional and liability insurance is available for Defendants. Indeed, the availability of insurance may also mitigate any potential chilling effect. Facilities could still allow patients some freedom without risking financial ruin resulting from uncommon occurrences like the present case.

Thus, under the analysis outlined in Brown, Plaintiff has pleaded sufficient facts to allege Defendants owed her a duty of care. As to the negligence elements of breach, causation, and damages, Plaintiff has demonstrated a potential breach by Defendants in allowing the attack. (Id. ¶ 18.) Defendants’ actions potentially caused her injury as well. (Ibid.) Plaintiff has also pleaded that she suffered injury. (Id. ¶ 24.) Therefore, Defendants’ demurrer is overruled as to Plaintiff’s negligence cause of action. With respect to Plaintiff’s cause of action for negligent hiring, Defendants argue that Plaintiff must merely demonstrate the elements of negligence. Having done so, Defendants’ demurrer is overruled as to that cause of action as well.