Judge: Deborah C. Servino, Case: 30-2023-01310275, Date: 2023-08-18 Tentative Ruling
DEMURRER
Defendants Phoenix House Orange County, Inc. and Phoenix Houses of California, Inc.’s demurrer to Plaintiff Ronald Walker, Jr.’s Complaint is overruled as to the first and third through sixth causes of action, and sustained with 15 days leave to amend as to the seventh cause of action.
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
First and Third Through Fifth Causes of Action (Sexual Harassment, Sexual Battery, Common Law Battery, and Intentional Infliction of Emotional Distress)
With respect to the first cause of action for sexual harassment, third cause of action for sexual battery, fourth cause of action for common law battery, and fifth cause of action for intentional infliction of emotional distress, Defendants argue that they cannot be liable on vicarious liability principles because the Complaint fails to state sufficient facts to show that Defendant Justin Hampshire's alleged conduct was within the course and scope of his employment. (Dem., at pp. 6-7.) Due to the special relationship that employers have with their employees, "California deems employers to be vicariously liable for the torts committed by their employees if, but only if, the employee is acting within the scope of employment." (Musgrove v. Silver (2022) 82 Cal.App.5th 694, 707 [emphasis in original].) As one court observed:
One court has described the task of assessing whether an employee is acting within the scope of employment as 'difficult.' [Citation.] This is an understatement. The difficulty stems in part from the fact that the decision whether an employee is acting within the scope of employment is imbued with policy considerations [citations], and in part from the fact that the court--while agreeing that the scope of employment should be 'interpreted broadly' [citation]--have nevertheless articulated no fewer than four different tests for assessing whether particular acts should be deemed within the scope of employment and hence a basis for imposing vicarious liability [citation].
(Ibid.)
The four main tests are (1) risk-focused test; (2) foreseeability-focused test; (3) benefit- and custom-focused test; and (4) public policy-focused test. (Id. at pp. 708-710.) "Despite the different formulations of the scope-of employment standard, the courts articulating these tests all agree that an employee's tortious acts may qualify as within the scope of employment-assuming they satisfy the pertinent test-even if the employer did not authorize the employee's conduct [citation], even if the employee acted without the motive of serving the employer's interest [citation], and even if the employee engaged in intentional (or even criminal) conduct [citation]." (Id. at p. 710.)
Here, it appears that the parties' arguments are based upon the risk-focused test. Defendants rely largely on Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291. Plaintiff relies heavily on Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202. Because both cases were beyond the demurrer stage, they offer little assistance to this court. Rather, allegations that a tortfeasor is an employee of the defendant and committed the tort within the course or scope of employment are ultimate facts, which survive a demurrer. (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376; see May v. Farrell (1928) 94 Cal.App. 703, 707; Skopp v. Weaver (176) 16 Cal.3d 432, 437.) Plaintiff has sufficiently alleged that Hampshire was acting within the course and scope of his authority as an agent and/or employee. (Complaint, at ¶¶ 16, 19-30.) As a result, the demurrer is overruled as to the first and third through fifth causes of action.
Sixth Cause of Action (Negligent Hiring/Supervision)
An employer may not be held liable for negligent hiring and/or supervision unless 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.) There can be no liability for negligent supervision “in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395.)
Plaintiff alleges that Defendants permitted Hampshire to work as a substance abuse counselor without conducting a full background check and investigation and that they should have known he was unfit. (Complaint, at ¶ 88.) In addition, Plaintiff alleges Defendants failed to supervise Hampshire, and failed to have policies and procedures in place to ensure that Plaintiff could not be led into the nursing station at night out of view of any security cameras. (Complaint, at ¶ 89.) Also, in paragraph 13 of the Complaint, Plaintiff alleges that Hampshire, prior to the incident, had been arrested, charged, and/or convicted of several crimes, including possession of controlled substance paraphernalia, commercial structure burglary, credit card theft, which could or would have been discovered upon a criminal background check. These allegations are sufficient to state a claim for negligent hiring/supervision. The demurrer is thus overruled as to the sixth cause of action.
Seventh Cause of Action (Violation of Civ. Code § 51.7)
In order to show a violation of Civil Code section 51.7 (the Ralph Act), Plaintiff must establish that Defendants committed an act of violence against him, that a substantial motivating factor was Plaintiff’s race, age, sex, or any other protected characteristic, Plaintiff was harmed, and Defendant’s conduct was a substantial factor in causing the harm. (CACI no. 3064.)
Plaintiff alleges that Hampshire’s actions were taken “based on Plaintiff’s actual or perceived characteristics based on his affiliation with a protected class.” (Complaint, at ¶ 96.) Plaintiff does not identify what protected class he is affiliated with, which is an essential element of this claim. As a result, the demurrer to this cause of action is sustained with 15 days leave to amend.
MOTION TO STRIKE
Defendants’ motion to strike portions of Plaintiff’s Complaint is granted in part and denied in part. The motion is denied as to attorney's fees allegations. The motion is granted with 15 days leave to amend as to the punitive damages allegations.
The motion is moot with respect to the attorney's fees claim associated with the seventh cause of action, based on the ruling on the demurrer above. Plaintiff additionally alleges a claim for attorney's fees in the prayer for relief with respect to the first cause of action. Attorney’s fees are recoverable by a party only if specifically provided for by a statute or law, or if authorized by an express agreement between the parties. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10)(A)-(C); Civ. Code, § 1717; see also Nasser v. Superior Court (1984) 156 Cal.App.3d 52, 56 (“Absent an agreement or statute, a party is generally precluded from recovery of attorney fees.”); Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127.)
Here, Plaintiff has alleged that he is entitled to attorney's fees based upon Civil Code sections 51.9 and 52. Civil Code section 52, subdivision (b)(3) provides for attorney's fees against whomever denies the right provided by Civil Code section 51.9. Accordingly, the motion to strike the attorney's fees claims with respect to the first cause of action, is denied.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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. (Code Civ. Proc., § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:179.) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App. 3d 1, 6.)
Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) Fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)
A corporate defendant may not be liable for punitive damages based on the acts of its employees unless the plaintiff alleges and proves that an officer, director or managing agent of the corporation: (1) was personally guilty of oppression, fraud or malice; or (2) had advance knowledge of, authorized, or ratified the wrongful conduct for which the damages are awarded. (Civ. Code, § 3294, subd. (b).)
In the Complaint, Plaintiff fails to allege that an officer, director, or managing agent of Defendants was either personally guilty of oppression, fraud, or malice or had advanced knowledge of, authorized, or ratified the wrongful conduct. As a result, the motion is granted with 15 days leave to amend, as to Plaintiff’s punitive damages claims.
Defendants shall give notice of the rulings.
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