Judge: Frank M. Tavelman, Case: 21STCV27207, Date: 2022-08-12 Tentative Ruling

Case Number: 21STCV27207    Hearing Date: August 12, 2022    Dept: A

ALLEGATIONS:

Horacio Flores ("Plaintiff") filed suit against defendants Octavio Flores Casillas ("Octavio"); Humberto Flores Casillas ("Humberto"); F&C Trucking ("F&C", and together with Octavio, and Humberto, "Employer Defendants"); Joseph Carl Knudsen ("Knudsen", and together with Employer Defendants, "F&C Defendants"); and The Huntington Library Art Museum, and Botanical Gardens ("Huntington"). Plaintiff alleges that he was injured after being pinned between a wooden crate and a large rock while on Huntington property on July 25, 2019, after Knudsen collided with the wooden create while driving a work truck owned by Octavio, Humberto, and F&C.

Plaintiff filed a Complaint on July 23, 2021; and a First Amended Complaint ("FAC") on December 21, 2021, alleging three causes of action: (1) Negligence; (2) Negligent Hiring/Training/Supervision/Retention; and (3) Premises Liability (against Huntington).

HISTORY:

The Court received the Demurrer and Motion to Strike both filed by Defendants Joseph Carl Knudsen, Octavio Flores Casillas, Humberto Flores Casillas, and F&C Trucking ("F&C Defendants") on February 16, 2022; the opposition to both matters filed by Plaintiff on March 9, 2022; and the reply to both matters filed by F&C Defendants on March 16, 2022.

On April 25, 2022, this action was transferred from Department 29 of the Spring Street Courthouse to the current Court, Department A of the Burbank Courthouse. The Court gave notice to Plaintiff, who was in turn ordered to give notice to all other parties.

On June 2, 2022, the Court set the instant matters for hearing on June 24, 2022. F&C Defendants' counsel was ordered to give notice.

On June 24, 2022, the Court continued the instant matters to August 1, 2022. F&C Defendants’ counsel was ordered to give notice.

On July 12, 2022, the Court continued the instant matters to August 12, 2022, as the Court would be dark on August 1, 2022. Plaintiff’s counsel was ordered to give notice.

RELIEF REQUESTED:

F&C Defendants demur generally to the FAC, and specifically to the second cause of action in the FAC.

F&C Defendants move to strike the following portions of the FAC:

1.      3:12-16

2.      3:16-19

3.      3:21-23

4.      4:14

5.      5:11

6.      7:9

7.      7:12-13

8.      7:14-16

9.      14:17

ANALYSIS:

Demurrer

I.          LEGAL STANDARD

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.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); 435.5(a)(4).) 

On review of the Declaration of Edo Azran, the Court finds that F&C Defendants have satisfied meet and confer requirements to code. (Decl. Azran, ¶ 3.)

III.       MERITS

A.    First Cause of Action (Negligence)

A complaint for damages for negligent injury to person or property must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. (Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.)

F&C Defendants demur generally to the FAC but make no specific argument as to the first cause of action. The Court will thus review the negligence cause of action in the FAC for sufficiency.

On review of the FAC, the Court finds that the pleading does not expressly allege that either Employer Defendants or Knudsen had a legal duty of care toward Plaintiff. The FAC thus does not state a cause of action for negligence as to F&C Defendants.

The Court thus sustains the demurrer as to the first cause of action, with leave to amend.

B.     Second Cause of Action (Negligent Hiring/Training/Supervision/Retention)

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) A cause of action for negligent hiring, supervision, or retention of employee requires the following elements: (1) the employer hired the employee; (2) the employee was/became unfit or incompetent to perform the work for which he was hired; (3) the employer knew or should have known the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed the plaintiff; and (5) the employer’s negligence in hiring/supervising/retaining the employee was a substantial factor in causing plaintiff’s harm. (CACI 426.)

F&C Defendants argue that an employer-defendant who is alleged to be liable on only a theory of respondeat superior for torts committed by its employee in the course of employment is correspondingly liable only to the extent that the employee is at fault, citing to Diaz v. Carcamo (2011) 51 Cal.4th 1148. F&C Defendant argue that because the FAC alleges that Knudsen operated his vehicle "within the scope of said agency, authority, employment, and joint venture", this allegation constitutes a judicial admission on the part of Plaintiff that precludes any liability apart from general negligence, pled in the first cause of action. (FAC, ¶ 10.)

In opposition, Plaintiff argues that the Court already considered and rejected this argument on November 22, 2021, ruling that Diaz is inapplicable because the employer defendants have not made an admission as to vicarious liability. (November 22, 2021 Minute Order at p. 4.)

In reply, F&C Defendants argue that they were present at the November 22, 2021 hearing while Plaintiff was not, that F&C Defendants' counsel specifically asked the Court at the hearing whether they would be precluded from raising this issue if it appeared in the amended pleading, and that the Court stated that they were not precluded from doing so.

On review of the case, the Court cannot locate any information to confirm or deny F&C Defendants' assertion that the Court gave them specific permission to bring the Diaz issue up on a subsequent amended pleading. While it is true that the November 22, 2021 minute order states that F&C Defendants appeared and Plaintiff did not, there is no language in the minute order speaking to this permission. The minute order provides only that F&C Defendants' demurrer was sustained with leave to amend. F&C Defendants further do not support their assertion by declaration or with any other evidence.

For the purposes of this analysis, however, it is of no consequence whether or not the previous Court gave F&C Defendants express permission to raise this issue on a subsequent amended pleading, as F&C Defendants are not barred from doing so to begin with. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1035-36 (". . . when a plaintiff files an amended pleading in response to an order sustaining a prior demurrer to a cause of action with leave to amend, the amended cause of action is treated as a new pleading and a defendant is free to respond to it by demurrer on any ground.") The Court will thus consider this issue.

The Diaz court held that the defendant employer's concession that it was vicariously liable for its employee's negligence in operating a truck rendered evidence of its negligent entrustment irrelevant. (Diaz, supra, 51 Cal.4th at 1158.) Diaz further provided that the same rationale applies to bar a claim for negligent hiring or retention. (Id. at 1157.) As the Diaz holding cited by F&C Defendants is conditioned upon the employer-defendant's admission of vicarious liability, the Court will not sustain the demurrer as to the second cause of action on this basis.

The Court considers, however, that the FAC does not allege any facts supporting a cause of action for negligent hiring, training, supervision, or retention as to Knudsen, the employee. The Court thus sustains the demurrer as to the second cause of action, as to Knudsen only, with leave to amend.

IV.       CONCLUSION

Accordingly, the Court sustains the demurrer as to the first cause of action as to F&C Defendants, and the second cause of action as to Knudsen only, both with 20 days' leave to amend.

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Motion to Strike

I.          LEGAL STANDARD

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See CCP §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (CCP § 436(a).) In granting a motion to strike made under CCP § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (CCP § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (CCP § 431.10.) The court may also “[s]trike 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.” (CCP § 436(b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.) The statutory elements for punitive damages require that a defendant is guilty of “fraud, oppression, or malice.” (See Civ. Code § 3294(a).) Malice is conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code § 3294(c)(2).) “Fraud” is “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(c)(3).)

II.        MEET AND CONFER

CCP § 435.5(a) provides that before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.

On review of the Declaration of Edo Azran, the Court finds that meet and confer requirements have been satisfied to code. (Decl. Azran, ¶ 3.)

III.       MERITS

F&C Defendants argue that the FAC does not allege sufficient facts to sustain a claim for punitive damages against them. F&C Defendants also argue that Employer Defendants are not liable for punitive damages based on their employee's wrongful conduct.

In opposition, Plaintiff argues that the FAC alleges Knudsen acted intentionally and with malice in fleeing the scene of the collision after causing Plaintiff's injuries, and knowing Plaintiff was injured, and that this conduct justifies punitive damage claims. (FAC, ¶¶ 12-13.) Plaintiff also argues that the FAC alleges that Employer Defendants had advanced knowledge of the unfitness of Knudsen.

On review of the FAC, the Court finds that the facts alleged support punitive damage claims against Knudsen. The FAC alleges only negligence causes of action against F&C Defendants, and while negligence, or even gross negligence, cannot ordinarily support punitive damage allegations, negligence accompanied by "criminal indifference toward the obligations owed to others" is enough to support punitive damages. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) The FAC alleges that Knudsen injured Plaintiff by backing his truck into a wooden create, which physically pinned Plaintiff against a large rock; that Knudsen was made aware of his actions; but that Knudsen chose to flee the scene with this knowledge. (FAC, ¶¶ 12-13.) These facts support a claim of negligence with aggravating circumstances showing malice and oppression at this pleading stage.

The Court finds that the facts alleged do not support punitive damage claims against Employer Defendants. The FAC alleges that Employer Defendants were aware that Knudsen was unfit for his position but presents no other supporting factual allegations to substantiate this conclusion. (FAC, ¶ 35.) The FAC also alleges that Employer Defendants failed to provide adequate training to Knudsen and failed to exercise reasonable care in hiring Knudsen but present no supporting factual allegations for this conclusion. The facts alleged thus support only a claim of negligence, and not punitive damage claims.

F&C Defendants also move to strike lines 12-16, 16-19, and 21-23 of paragraph 3, which allege that Employer Defendants knew of, authorized, and participated in Knudsen’s misconduct. These allegations are similarly conclusory and unsupported by the facts pled.

IV.       CONCLUSION

Accordingly, the Court denies the instant motion in part, as to: paragraph 13, line 14; paragraph 15, line 11; paragraph 22, line 9 as to Knudsen only; paragraph 22, lines 14-16 as to Knudsen only; and Prayer for Damages No. 6, line 17 as to Knudsen only. The Court grants the motion in part, as to: paragraph 10, lines 12-16; paragraph 10, lines 16-19; paragraph 10, lines 21-23; paragraph 22, line 9 as to Employer Defendants only; paragraph 22, lines 12-13; paragraph 22, lines 14-16 as to Employer Defendants only; and Prayer for Damages No. 6, line 17 as to Employer Defendants only.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Joseph Carl Knudsen, Octavio Flores Casillas, Humberto Flores Casillas, and F&C Trucking's Demurrer and Motion to Strike came on regularly for hearing on August 12, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED AS TO THE FIRST CAUSE OF ACTION AS TO F&C DEFENDANTS; AND SUSTAINED AS TO THE SECOND CAUSE OF ACTION AS TO KNUDSEN ONLY; BOTH WITH 20 DAYS' LEAVE TO AMEND.

THE MOTION TO STRIKE IS DENIED IN PART, AS TO: PARAGRAPH 13, LINE 14; PARAGRAPH 15, LINE 11; PARAGRAPH 22, LINE 9 AS TO KNUDSEN ONLY; PARAGRAPH 22, LINES 14-16 AS TO KNUDSEN ONLY; AND PRAYER FOR DAMAGES NO. 6, LINE 17 AS TO KNUDSEN ONLY.

THE MOTION TO STRIKE IS GRANTED IN PART, AS TO: PARAGRAPH 10, LINES 12-16; PARAGRAPH 10, LINES 16-19; PARAGRAPH 10, LINES 21-23; PARAGRAPH 22, LINE 9 AS TO EMPLOYER DEFENDANTS ONLY; PARAGRAPH 22, LINES 12-13 AS TO EMPLOYER DEFENDANTS ONLY; PARAGRAPH 22, LINES 14-16 AS TO EMPLOYER DEFENDANTS ONLY; AND PRAYER FOR DAMAGES NO. 6, LINE 17 AS TO EMPLOYER DEFENDANTS ONLY, WITH 20 DAYS' LEAVE TO AMEND.

IT IS SO ORDERED.

DATE:  August 12, 2022                              _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles