Judge: Daniel M. Crowley, Case: 22STCV190011, Date: 2023-01-31 Tentative Ruling

Case Number: 22STCV190011    Hearing Date: January 31, 2023    Dept: 28

Defendants Xiaohu Gan and Ling Zhang’s Demurrer

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On June 10, 2022, Plaintiff Todd Rigg (“Plaintiff”) filed this action against Defendants Sam Morris (“Morris”), Xiaohu Gan (“Gan”) and Ling Zhang (“Zhang”) for assault, battery, intentional infliction of emotional distress, negligence and negligent hiring, supervision and retention.

On January 4, 2023, Defendants Gan and Zhang (“Moving Defendants”) filed a Demurrer to be heard on January 31, 2023. On January 18, 2023, Plaintiff filed an opposition.

Trial is scheduled for December 8, 2023.

PARTY’S REQUESTS

Moving Defendants request the Court sustain the demurrer as to the fourth and fifth causes of action for failure to state a sufficient cause of action.

Plaintiff requests the Court overrule the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

“Negligence liability will be imposed on an employer 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).

DISCUSSION

Plaintiff’s complaint alleges that Plaintiff, Gan and Zhang’s tenant, was attacked by Gan and Zhang’s tenant and employee, Morris. Plaintiff allegedly was attempting to warn Morris of a potential fire hazard when he, suddenly and without warning, physically assault Plaintiff. Gan and Zhang are demurring to the fourth and fifth causes of action for negligence and negligent hiring, supervision and retention.

Moving Defendants demurrer on the basis that Plaintiff failed to show that Morris was an employee of Moving Defendants, and that he was, in fact, an independent contractor.  Nevertheless, Plaintiff clearly alleges that Morris was an employee (see, paragraphs 4, 8, 13, 21).  It is improper on demurrer to consider demurring parties factual argument to the contrary. 

CONCLUSION

Defendants Xiaohu Gan and Ling Zhang’s Demurrer is OVERRULED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.