Judge Christian R. Gullon, Case Number: 23PSCV02007, Date: 2023-10-26 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV02007, Date: 2023-10-26 Tentative Ruling

DEFENDANT FOOTHILL TRANSIT’S DEMURRER TO PLAINTIFF’S COMPLAINT is OVERRULED in part (i.e., 1^st COA for negligence) and SUSTAINED in part with leave to amend (i.e., as to the 2^nd COA for negligent hiring, retention, supervision).

This is a negligence case. Plaintiff ERIC LUTZ alleges the following against Defendants FOOTHILL TRANSIT (“Foothill Transit” or “Foothill”), a public transit agency; KEOLIS TRANSIT OF AMERICA, INC. (“Keolis”), a California corporation; DARLENE DEE PATINO (the “Driver”): the driver struck Plaintiff while he was walking and had the right-of-way.

A demurrer may be asserted, in pertinent part, on the grounds that (e) The pleading does not state facts sufficient to constitute a cause of action or that the (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible). (Code of Civ. Proc., § 430.10, Demurrer pp. 3-4.) Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

Foothill Transit demurs on the following grounds: (i) Plaintiff fails to properly allege a cause of action for negligence because Foothill Transit is immune from liability for common law negligence and (ii) the second cause of action fails because there is no statutory basis for the COA. More specifically, as to both, Foothill Transit avers that the complaint fails to adhere to the requirement that in order to state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. Cnty. of San Mateo (1996) 12 Cal. 4th 913, 917.)

Plaintiff asserts a negligence COA against Foothill Transit based upon the following pertinent allegations:

Defendant FOOTHILL TRANSIT, per Government Code section 815.2 and California Vehicle Code section 17001,[1] is vicariously liable for the injuries and damages proximately caused by such negligence and failures of [the Driver] . . . Defendants knew or should have known that bus operators would be required to operate passenger buses through busy neighborhoods, making frequent starts and stops in close proximity to pedestrians, as distinct from other members of the public.

Effectively, Plaintiff claims Foothill Transit is vicariously liable (Government Code section 815.2) because the Driver was negligent by not stopping when it saw Plaintiff.

It is well-established that Government Code section 815 subdivision (a) abolished common law tort liability against public entities. (Demurrer p. 5, Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 899.) Thus, to assert a negligence COA against a public entity, it must be predicated upon a statute. (Gov. Code §815(a).) Additionally, general allegations of negligence are insufficient and “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal. 3rd 780, 795 (citations omitted).[2]

Here, Plaintiff has sufficiently alleged that Defendant Foothill Transit is vicariously liable for the injuries and damages proximately caused by the Driver’s negligence and failure because the Driver (employee) struck Plaintiff despite him having the right of way (which is the how or the ultimate facts illustrating the negligence).

To the extent that Foothill Transit argues it is unclear whether the Driver was an employee of Foothill Transit or Keolis, as she cannot be an employee of both, a “court's function is limited to testing the legal sufficiency of the complaint” such that “a demurrer is simply not the appropriate procedure for determining the truth of disputed facts,” no matter how improbable the facts. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 634.)

To the extent that Foothill Transit argues Gov. Code section 820.2 provides immunity since the Driver exercised discretion (Demurrer p. 6), Foothill Transit has not offered more to explain the applicability of the statute. In any event, reaching the issue of whether the Driver appropriately exercised discretion would involve an assessment of facts and evidence, which is improper at this stage. (See Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 385, 56-57 [“Whether defendant Neal, in the circumstances related, exercised ordinary care in looking for pedestrians or was negligent in failing to see the deceased was purely a question of fact for the jury.”].)

Lastly, to the extent that Foothill Transit argues Plaintiff has not alleged sufficient facts that Foothill Transit had the requisite knowledge to be put on notice of the specific accident that is the basis of Plaintiff’s Complaint (Demurrer p. 6), the court, absent further elaboration, is uncertain as to the relevance of this argument.[3]

Under the doctrine of respondent superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment. (CACI 3700.) An employer may owe a duty of care in hiring and supervising its employees so as to avoid exposing third persons to an unreasonable risk of harm: “An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210-1211.) Foreseeability of the harm is key. The employer is not liable merely because its employee is incompetent, vicious or careless. A duty of care to third persons arises only when a risk of harm to such persons by the employee was reasonably foreseeable, i.e., 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, supra, 59 Cal.App.4th at p. 1214; see also Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1055 [“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”].) Accordingly, the elements to establish a claim for vicarious liability can be summed up as follows: (1) employer hired the employee, (2) employee was or became unfit or incompetent, (3) employer knew or should have known that the employee was/became unfit or incompetent, (4) as a result of said unfitness or incompetence, a harm occurred, and (5) it was the employer’s hiring or retention of that unfit or incompetent employee that was a substantial factor in causing said harm.

Defendants knew of [the Driver’s] lack of qualifications as a driver, and history of driving violations, which created an unreasonable risk to foreseeable pedestrian. Plaintiff is informed and believes and thereon alleges that despite this advance knowledge, these Defendants failed to properly train, supervise, discipline, and manage the risks of their employee to pedestrians.

In sum, Plaintiff alleges that the Driver had a history of driving violations, Foothill Transit knew of the Driver’s driving violations and lack of qualifications yet failed to supervise the Driver.

Here, however, while Plaintiff may assert Defendant’s liability is premised on the fact that it is a licensed public transit agency and, under federal and state laws, has a mandatory duty to hire, retain, supervise, and/or train transit bus operators in a manner specified by such laws—citing to Vehicle Code § 1808.1; Education Code § 40083; Education Code § 40085.5—this was not alleged in the complaint. (See Melikian v. Truck Ins. Exchange (1955) 133 Cal.App.2d 113, 114 [“In approaching that issue we are bound, just as the trial court was bound, by the allegations in the verified complaint and cannot consider the outré-judicial statements of counsel nor the additional facts found in the briefs.”].) Thus, as no statute has been alleged in the complaint, the court need not address the statutes cited in opposition.[4]

Therefore, the court SUSTAINS the demurrer as to the 2^nd COA with leave to amend.

Based on the foregoing, the demurrer is OVERRULED in part and SUSTAINED in part.

[1] Vehicle Code § 17001 provides that a public entity is liable for injury to a person proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his or her employment.

[2] Plaintiff argues that Lopez is inapposite as the facts are different. As noted by Foothill Transit in reply, it is less the facts of the case and rather the legal standard regarding claims against governmental entities that bears significance.

[3] Foothill Transit cites to Lopez, but Lopez discussed Civil Code section 2100’s (duty to protect passengers from assaults by fellow passengers) requirement that the carrier’s knowledge of conditions from which it may reasonably be apprehended that an assault on a passenger may occur. Here, however, the duties of carriers is not at issue.

[4] And the court need not reach the issue of whether there exists no statutory provision declaring or defining a public entity’s duty of care with respect to the hiring, retention, supervision, or training of employees. (Demurrer p. 7, citing de Villers v. Cnty. of San Diego (2007) 156 Cal. App. 4th 238, 253.)