Judge: Daniel M. Crowley, Case: 20STCV39659, Date: 2023-04-26 Tentative Ruling
Case Number: 20STCV39659 Hearing Date: April 26, 2023 Dept: 207
Background
Plaintiff Gilbert Tomas Prado (“Plaintiff”) brings this
action stemming from an incident which occurred at Southern California Hospital
at Culver City, in which he alleges he was attacked by Defendant Cesar Almazan
(“Almazan”). Plaintiff asserts Almazan was the employee or agent of Defendants
Southern California Healthcare System, Inc., dba Southern California Hospital
at Culver City and Prospect Medical Holdings, Inc. (collectively “Defendants”).
Plaintiff’s operative pleading is the Second Amended Complaint (“SAC”) filed
December 12, 2022, and asserting four causes of action against Defendants for
(1) negligent hiring and supervision, (2) premises liability, (3) assault, and
(4) battery. Defendants now bring a demurrer to Plaintiff’s first, third, and
fourth causes of action pursuant to Code Civ. Proc. § 430.10(e) and (f),
arguing each fails to state sufficient facts to constitute a cause of action
against them and is uncertain. Defendants’ separately move to strike
Plaintiff’s claim for punitive damages against them. Plaintiff opposes
Defendants’ motions.
Demurrer Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) 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
pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such,
the court assumes the truth of the complaint’s properly pleaded or implied
factual allegations. (Id.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
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, even as against a special demurrer, 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.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be
sustained where the pleading is so unintelligible that a defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even
if the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Motion to Strike Standard
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court
may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Id., § 436(b).) The grounds for a
motion to strike are: the pleading has irrelevant, false, or improper matter,
or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id. § 437.)
Analysis
1. Meet
and Confer Requirement
The Court
finds Defendants have complied with the meet and confer requirements set forth
under Code of Civil Procedure §§ 430.41 and 435.5. (DeWolfe Decl. at ¶9.)
2. Negligent
Hiring & Supervision
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.) The elements of a cause of action
for negligent hiring, retention, or supervision are: (1) the employer’s hiring,
retaining, or supervising an employee; (2) the employee was incompetent or
unfit; (3) the employer had reason to believe undue risk of harm would exist
because of the employment; and (4) harm occurs. (Evan F. v. Hughson United
Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)
Foreseeability of the harm is key. The
employer is not liable merely because its employee is incompetent, vicious or
careless. (Federico, supra, 59 Cal.App.4th at 1214.) 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.” (Id; 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”].)
In sustaining Defendants’ prior
demurrer to this cause of action in Plaintiff’s First Amended Complaint
(“FAC”), the Court found Plaintiff had not asserted sufficient facts to plead
the element of foreseeability:
Here, Plaintiff has failed to allege
facts demonstrating foreseeability, i.e., that Defendants knew or should have
known of facts which would have reasonably warned Defendants of Almazan’s
alleged “dangerous propensity”. Plaintiff refers to paragraph 18 of the FAC to
support the contention that the FAC does allege facts demonstrating
foreseeability. However, paragraph 18 and other related paragraphs merely state
legal conclusions, rather than facts supporting Plaintiff’s contentions.
Plaintiff’s FAC states Almazan was “unfit or incompetent, or became unfit or
incompetent to perform his job duties”, and that “Defendants . . . knew or
should have known that Almazan was unfit or incompetent, or became unfit or
incompetent during the course of his employment”. (FAC, ¶¶ 16-18.) These
allegations are insufficient to survive demurrer. Plaintiff has failed to
allege material facts supporting the legal conclusion that Defendants “knew or
should have known” about Almazan’s violent propensity. Plaintiff must not
merely state legal conclusions, but must provide facts illustrating these
contentions.
(July 28, 2021, Order at 3.)
Plaintiff’s cause of action for
negligent hiring and supervision is set forth in paragraphs 14 through 28 of
both the FAC and SAC. These paragraphs in the SAC repeat, verbatim, the
paragraphs of the FAC without any additional facts. Plaintiff argues the SAC
now alleges the subject incident occurred on hospital premises, citing
paragraphs 11 and 13 of the SAC. But paragraphs 11 and 13 of the FAC already
alleged the incident occurred on the premises as well. Plaintiff cannot point
to any new allegations or material in the SAC which was not already considered
and rejected by the Court in ruling on Defendants’ demurrer to the FAC.
Plaintiff has failed to cure the defects identified in the Court’s July 28,
2021, ruling, and Defendants’ demurrer to this cause of action is SUSTAINED as
it fails to state facts sufficient to constitute a cause of action against them.
In that prior order, the Court
granted “a final opportunity for Plaintiff to amend the allegations within his
first cause of action.” (Order at 3-4.) As Plaintiff has made no effort to
address the deficiencies in the FAC and has simply refiled the same verbatim
allegations in the SAC, the Court finds Plaintiff has failed to carry his
burden of demonstrating these defects could be cured by further amendment and
thus SUSTAINS Defendants’ demurrer to the first cause of action for negligent
hiring and supervision without leave to amend.
3. Assault
and Battery
“The essential elements of a cause
of action for assault are: (1) defendant acted with intent to cause harmful or
offensive contact, or threatened to touch plaintiff in a harmful or offensive
manner; (2) plaintiff reasonably believed [he or] she was about to be touched
in a harmful or offensive manner or it reasonably appeared to plaintiff that
defendant was about to carry out the threat; (3) plaintiff did not consent to
defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was
a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013)
212 Cal.App.4th 652, 668-669.) “The essential elements of a cause of action for
battery are: (1) defendant touched plaintiff, or caused plaintiff to be
touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (Id.)
Plaintiff seeks to hold Defendants
liable on his causes of action for assault and battery under the theory of
respondeat superior which allows for the imposition of liability against an
employer for the tort of an employee committed within the scope of the
employment. For the employer to be liable for an
intentional tort, the employee’s act must have a “causal nexus to the
employee’s work,” i.e., “inherent in the working environment” or “typical” to
the employer’s business. (Montague v. AMN Healthcare, Inc. (2014) 223
Cal.App.4th 1515, 1521; Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 298-99.) The employee’s conduct falls within the scope
of his employment and is thus a causal nexus if the conduct either: (1) is
required by or incidental to the employee’s duties; or (2) it is reasonably
foreseeable in light of the employer’s business. (Bailey v. Filco, Inc.
(1996) 48 Cal.App.4th 1552, 1559.) An employer may also be liable for an
employee’s acts where the employer either authorized the tortious act or
subsequently ratified an originally unauthorized tort. (Baptist v. Robinson
(2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has
committed misconduct may be evidence of ratification.” (Id.) “The theory
of ratification is generally applied where an employer fails to investigate or
respond to charges that an employee committed an intentional tort, such as
assault or battery.” (Id.) “That the employment brought tortfeasor and
victim together in time and place is not enough [to satisfy the nexus required
for respondeat superior liability].” (See Lisa M., supra, 12 Cal.4th at
298.)
In sustaining Defendants’ prior
demurrer to these causes of action, the Court found “Plaintiff has failed to allege
facts demonstrating Almazan’s conduct had a causal nexus to his work with
Defendants.” (Order at 6.) In reaching this result, the Court noted Plaintiff
had only asserted in conclusory fashion that Almazan’s conduct arose from a
risk inherent in his employment and that Defendants had ratified, adopted, or approved
Almazan’s conduct, and did “not support these allegations with any facts.” (Id.)
The Court again granted Plaintiff a “final opportunity” to amend these claims
by alleging “material facts supporting these conclusions.”
As with Plaintiff’s cause of
action for negligent hiring or supervision, Plaintiff’s allegations concerning
his causes of action for assault and battery in the SAC are entirely
duplicative of those same allegations which were held insufficient in the FAC.
Contrary to the Court’s prior directive, Plaintiff has not asserted any new
material facts supporting his conclusions that Almazan’s conduct had a causal
nexus to his work for Defendants or arose from a risk inherent in his
employment. Plaintiff has also failed to plead any new facts supporting the
conclusion that Defendants ratified, adopted, or approved Almazan’s conduct.
In his opposition, Plaintiff
attempts to rely on the declaration of his counsel to show his causes of action
are sufficiently pled. Such material is beyond the scope of the Court’s
consideration in ruling on a demurrer, as the Court’s inquiry on such a motion
is limited to the four corners of the complaint itself as well as any material
which the Court may judicially notice. The Court must necessarily disregard the
statements contained in counsel’s declaration in ruling on the sufficiency of
the allegations of the SAC.
For these reasons, the Court finds
Plaintiff has failed to state facts sufficient to constitute a cause of action
against Defendants for assault or battery and therefore SUSTAINS Defendants’
demurrer to those causes of action without leave to amend.
4. Motion to
Strike
Defendants also move to strike
Plaintiffs’ claim for punitive damages against them. In granting Defendants’
prior motion to strike, the Court found Plaintiff had failed to plead any
factual allegations showing Defendants acted with oppression, fraud, or malice:
Here, Plaintiff’s FAC is devoid of any
factual assertions supporting the conclusion that moving Defendants acted with
oppression, fraud, or malice. As explained more fully above, Plaintiff has
failed to allege material facts supporting the contention that Defendants had
knowledge of Almazan’s dangerous propensities and employed him, nonetheless,
with conscious disregard of the safety of others. Further, Plaintiff has failed
to allege facts demonstrating that Defendants intended to cause injury to
Plaintiff. Without sufficient allegations demonstrating Defendants acted with
malice, oppression, or fraud, Plaintiff’s request for punitive damages against
moving Defendants must be struck.
(Order at 8.) Plaintiff’s SAC
fares no better as it is similarly devoid of any factual allegations which would
establish Defendants acted with oppression, fraud, or malice toward him. The
Court is compelled to again GRANT Defendants’ motion to strike the claim for
punitive damages against Defendants. As the Court has granted Defendants’
motion to strike this claim from the SAC for the same reasons the Court
previously struck this same claim from the FAC, the Court is not convinced
granting Plaintiff further leave to amend would cure this issue. Accordingly,
the Court GRANTS Defendants’ motion to strike without further leave to amend.
Conclusion
Defendants’ demurrer to Plaintiff’s first, third, and fourth
causes of action is SUSTAINED without leave to amend. Defendants’ motion to
strike Plaintiff’s claim for punitive damages is GRANTED without leave to amend
as to Defendants only.