Judge: Christopher K. Lui, Case: 22STCV34423, Date: 2023-03-29 Tentative Ruling
Case Number: 22STCV34423 Hearing Date: March 29, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1),
the Court does not desire oral argument on the demurrer addressed herein. As required by Rule 3.1308(a)(2), any party seeking
oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their
intent to appear and argue. Notice to Department
76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given
and the parties do not appear, the Court will adopt the tentative ruling as the
final ruling.
Plaintiffs contracted with Defendant CBR Systems for the lifetime storage of cord blood and tissue for stem cell banking, following the birth of Mari Agaverdian. Plaintiffs allege that the courier which contracted with CBR failed to deliver the package containing their blood specimen to the airport.
Defendant Q International Courier, LLC filed a Cross-Complaint against Defendants Subcontracting Concepts (CT) LLC and Moses Ayo Sogbuyi.
Defendant Subcontracting Concepts (CT) and Defendant CBR Systems, Inc. separately demur to the Complaint.
TENTATIVE RULING
Defendant Subcontracting Concepts (CT)’s demurer to the Complaint is OVERRULED as to the second, third and fourth causes of action and SUSTAINED with leave to amend as to the fifth cause of action.
Defendant CBR Systems, Inc.’s demurrer to the Complaint is SUSTAINED with leave to amend as to the first and second causes of action.
Plaintiffs are given 30 days’ leave to amend.
ANALYSIS
Defendant Subcontracting Concepts (CT)’s Demurrer
Meet and Confer
The Declaration of Steven C. Rice reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in CCP § 430.41.
Discussion
Defendant Subcontracting Concepts (CT) demurs to the Complaint as follows:
1. Second Cause of Action (General Negligence); Third Cause of Action (Vicarious Liability); Fourth Cause of Action (Negligent Hiring, Supervision and Retention of Employee.).
As to these three negligence-based causes of action, Defendant argues that the contractual terms which allegedly impose the duty, either by attaching the contract or pleading it according to legal effect.
Defendant’s argument is not persuasive. Defendant Subcontract Concepts (CT) (“SC) allegedly provides risk management and administrative services to regional courier’s companies, and Defendant Quick had contracted with SC to manage the courier pickup and delivery services for CBR. (Complaint, ¶ 13.) Defendant Sogbuyi is allegedly an employee of Quick and SC. (Id., ¶¶ 15, 37 – 41.) Sogbuyi allegedly retrieved the subject property to be delivered from Hollywood Presbyterian Medical Center to Los Angeles International Airport. (Id., ¶ 19.) Based on the allegations of the Complaint, Sobuyi was acting as agent for demurring Defendant SC.
“The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff's possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)
Unlike the doctrine of joint and
several liability, the doctrine of respondeat superior imposes liability
"irrespective of proof of the employer's fault." (Citation omitted.)
Liability is imposed on the employer as " 'a rule of policy, a deliberate
allocation of a risk.' " (Citation omitted.) The "modern and proper
basis of vicarious liability of the master is not his [or her] control or fault
but the risks incident to [the] enterprise." (Citation omitted.)
Thus, under the doctrine, an innocent principal
or employer is vicariously liable for the torts
of the agent or employee, committed
while acting within the scope of the employment. (Citations omitted.)
"Vicarious liability means that the act or omission of one person … is
imputed by operation of law to another[.]" (Citation omitted.)
(Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84 (bold emphasis added).)
[A] person may be held liable for negligence where he undertakes to act without an affirmative duty to do so but acts without due care. (Citations omitted.)
(Dennis W. Williams v. Foster (1989) 216 Cal.App.3d 510, 520.)
Where alleged negligence has caused personal [*588] injury
or property damage and economic loss, the existence of a duty of
care is the rule, not the exception. (Citations omitted.)
(S. Cal. Gas Leak Cases (2017) 18 Cal.App.5th 581, 587-88.)
Quite simply because demurring Defendant SC allegedly undertook to deliver the subject property from the hospital to the airport, through its alleged agent Sogbuyi, Defendant SC and its agent Sogbuyi had a duty to act with due care in undertaking such affirmative act, and allegedly breached that duty, which allegedly caused Plaintiffs’ property loss. This is sufficient to support the negligence-based second (general negligence) and third (vicarious liability) causes of action.
As to the
fourth cause of action for negligent hiring, supervision and retention of
employee, this is based upon the allegation that Defendant SC was negligent in
hiring and supervising Sogbuyi because he was unfit to perform the work for
which he was hired, and Defendant failed to properly train and supervise him.
(Complaint, ¶¶ 45 – 47.)
“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. [Citation.]” (Citation omitted.) Negligence liability will be imposed
upon the employer if it “knew or should have known that hiring the employee
created a particular risk or hazard and that particular harm materializes.” (Citation
omitted].) As such, “California follows the rule set forth in the Restatement
Second of Agency section 213, which provides in pertinent part: ‘A person
conducting an activity through servants or other agents is subject to liability
for harm resulting from his conduct if he is negligent or reckless: … [¶] (b)
in the employment of improper persons or instrumentalities in work involving
risk of harm to others[.]’ (Citation omitted.)” (Citation omitted.)
Liability for negligent supervision and/or retention of an employee is one of
direct liability for negligence, not vicarious liability. (Citation omitted.)
(Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)
Defendant SC does not address this direct theory of liability in light of the allegation that it affirmatively undertook, through its alleged agent Sogbuyi, to act, and thus it had a duty with respect to the hiring, supervision and retention of Sogbuyi.
The second, third and fourth causes of action are sufficiently pled. Defendant’s request in the Reply that the vicarious liability cause of action be stricken is denied. This argument was not presented in the moving papers and, in any event, would have to be the subject of a motion to strike, which was not brought.
The demurrer to the second, third and fourth causes of action is OVERRULED.
2. Fifth Cause of Action (Trespass To Chattel).
Defendant argues that intentional conduct required for this tort is not sufficiently pled.
Trespass to chattel “lies where an intentional interference with the possession of personal property has proximately caused injury.” (Citation omitted.) Emotional distress damages may be recovered for a trespass to chattel. (Citation omitted.)
(Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal. App. 5th 203, 216.)
Here, the Complaint alleges that Defendant Sogbuyi “intermeddled and interfered with Plaintiff’s right to use and/or right to possession of the Subject Property.” (Complaint, ¶ 51.) Plaintiff must allege that Sogbuyi intentionally interfered with such possession, for example, by intentionally abandoning the subject property or disposing of it. Then, there would be a factual basis for holding demurring Defendant SC vicariously liable for such act.
This cause of action is not sufficiently pled.
The demurrer to the fifth cause of action is SUSTAINED with leave to amend.
Plaintiffs are given 30 days’ leave to amend.
Defendant CBR Systems, Inc. Demurrer
Meet and Confer
The Declaration of Stephanie G. Chau reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in CCP § 430.41.
Discussion
Defendant CBR Systems, Inc. demurs to the Complaint as follows:
1. First Cause of Action (Brach of Contract).
Defendant argues that this cause of action fails to state facts sufficient to constitute a cause of action and that this cause of action is uncertain. Here, the Complaint alleges at ¶ 28 that:
On February 1, 2021, CBR and/or their contracted representatives breach the terms of the contract by failing to have a secure chain of custody in place for the Subject Property and failing to have a proper standard of care for handling of such fragile and irreplaceable materials.
Plaintiffs must allege the terms of the contract either verbatim or be legal effect, such that the alleged contractual obligations actually existed.
A
contract should be pleaded either in haec verba or according to its legal intendment and effect.
(Citations omitted.) An oral contract may be pleaded generally as to its
effect, because it is rarely possible to allege the exact words. (Citation omitted.)
(Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640.)
The other method of pleading a written contract is according to its
legal effect, by alleging the making, and then proceeding to allege the
substance of its relevant terms. This is more difficult, for it requires a
careful analysis of the instrument, comprehensiveness in statement, and
avoidance of legal conclusions, and it involves the danger of variance where
the instrument proved differs from that alleged. Nevertheless, it is an
established method, although infrequently employed. (See Snyder v. United
Properties Co. (1921) 53 C.A. 428, 431, 200 P. 366; Pneucrete Corp. v. United
States Fidelity & Guaranty Co. (1935) 7 C.A.2d 733, 741, 46 P.2d 1000;
Construction Protective Services v. TIG Specialty Ins. Co. (2002) 29 C.4th 189,
199, 126 C.R.2d 908, 57 P.3d 372, infra, § 1165, citing the text [“plaintiff
may plead the legal effect of the contract rather than its precise language”];
James 5th, § 3.20.)
4 Witkin, California Procedure, 5th, Pleading, § 519.,
This ground for demurrer is persuasive.
Defendant argues that this cause of action is allegedly founded upon a contract, and it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Civ. Proc. Code, § 430.10(g).) This argument is well-taken. ¶ 26 does not specify the nature of the contract, as required by § 430.10(g).
This ground for demurrer is also persuasive.
The demurrer to the first cause of action is SUSTAINED with leave to amend.
Defendant argues that Nayri Agaverdian is alleged to be a minor and therefore does not have the legal capacity to sue in her own name. Additionally, there is no order appointing Shakeh Karapetyan or any other person as Nayri Agaverdian’s guardian ad litem, and therefore Shakeh Karapetyan does not have the legal capacity to sue on Nayri Agaverdian’s behalf. California Code of Civil Procedure §§ 372; 430.10(b).
This ground for demurrer is MOOT, as the Court appointed Shakeh Karapetyan Guardian Ad Litem for minor Plaintiff Nayri Agaverdian.
2. Second Cause of Action (General Negligence).
Defendant argues that The Second Cause of Action for General Negligence fails to state facts sufficient to constitute a cause of action and is uncertain.
The Court incorporates by reference its discussion above re: the demurrer of co-Defendant Subcontracting Concepts (CT). Whereas Defendant Sogbuyi was alleged to be the employee/agent of Quick and SC (Complaint, ¶ 15), the Complaint does not allege that Sogbuyi was the employee/agent of demurring Defendant CBR Systems. As such, there is no factual basis to impute Sogbuyi’s alleged negligence to CBR Systems. Nor are there any facts whereby CBR Systems acted negligently.
On this basis, the demurrer to the second cause of action is SUSTAINED with leave to amend.
Defendant argues that the Second Cause of Action is allegedly founded upon a contract, and it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. California Code of Civil Procedure § 430.10(g). As noted, liability under the cause of action does not rely upon the terms of the contract. This argument is not persuasive.
Defendant argues that Nayri Agaverdian is alleged to be a minor and therefore does not have the legal capacity to sue in her own name. Additionally, there is no order appointing Shakeh Karapetyan or any other person as Nayri Agaverdian’s guardian ad litem, and therefore Shakeh Karapetyan does not have the legal capacity to sue on Nayri Agaverdian’s behalf. California Code of Civil Procedure §§ 372; 430.10(b).
As noted above, this ground for demurrer is MOOT, as the Court appointed Shakeh Karapetyan Guardian Ad Litem for minor Plaintiff Nayri Agaverdian.
Plaintiffs
are given 30 days’ leave to amend.