Judge Holly J. Fujie, Case Number: 24STCV18467, Date: 2025-03-11 Tentative Ruling

Plaintiff sues defendants The Hertz Corporation, Hertz System, Inc, John Doe (collectively “Defendants”) and Does 1 through 100, pursuant to December 4, 2024 complaint (“Complaint”) alleging causes of action for: (1) assault; (2) battery; (3) intentional infliction of emotional distress; (4) negligence; and (5) negligent hiring, supervision and retention. The Complaint alleges that on November 23, 2022, Plaintiff was a patron at a Hertz location in Los Angeles and was verbally harassed and assaulted by Hertz employee John Doe (“Doe”) while Plaintiff was waiting for his rental vehicle. (Compl., ¶ 8.)

On December 4, 2024, Hertz filed the instant demurrer (the “Demurrer”). On February 24, 2025, Plaintiff filed an opposition (the “Opposition”). On March 4, 2025, Hertz filed a reply (the “Reply”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code of Civil Procedure (“CCP”) § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) 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, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

“The elements of a cause of action for negligence are (1) the existence of a legal duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of the plaintiff's injury.” (Federico v. Superior Court (Jenry G.)¿(1997) 59 Cal.App.4th 1207, 1210–1211.)¿

“An employer is vicariously liable for the torts of employees committed within the course or scope of their employment.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138-139.) “[E]mployers are [not] strictly liable for all actions of their employees during working hours.” (Id. at 139.) “Respondeat superior liability should apply only to the types of injuries that as a practical matter are sure to occur in the conduct of the employer’s enterprise.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.) Liability for an act pursuant to a theory of vicarious liability is only allowed where the alleged wrongful act has “a causal nexus to the employee’s work.” (Id. at 297.)

Hertz demurs to the fourth cause of action on the grounds that the Complaint fails to demonstrate that Doe was acting within the scope of his employment when he allegedly assaulted Plaintiff. (Demurrer, pp. 5:19-6:11.) Plaintiff argues that Hertz is vicariously liable for the alleged assault because it occurred while Doe was “interacting directly with a customer in the course of a standard business transaction.” (Opp. p. 15:26-27; Compl. ¶ 8.) Upon review, the Complaint does not sufficiently allege how Doe’s actions were reasonably foreseeable in light of Hertz’s rental car business. “[I]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005.) “In such cases, the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Id.) Thus, the Demurrer to the fourth cause of action is SUSTAINED, with leave to amend.

“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.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “Negligence liability will be imposed upon the employer if it knew or should have known that hiring the particular employee created a particular risk or hazard and that particular harm materializes.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) “It would be a dubious proposition indeed to suggest that a party, simply by virtue of engaging in business, owes a duty to the world for all acts taken by its employee, irrespective of whether those actions were connected with the enterprise in which the business was engaged.” (Id. at 816.) “Failing to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom its employees come into contact, regardless of their relationship to the employer.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.)

Hertz demurs to the fifth cause of action on the grounds that the Complaint fails to allege facts as to how Hertz knew or should have known that Doe was unfit. (Demurrer, p. 8:10-12.) The Complaint alleges that Hertz “knew or should have known that Defendant JOHN DOE was incompetent and unfit and that his incompetence and unfitness created a particular risk to others, including Plaintiff.” (Compl., ¶ 41.) Plaintiff has not alleged any facts supporting this contention. To survive a demurrer, it is not sufficient to merely restate the elements of a cause of action. Thus, the Demurrer to the fifth cause of action is SUSTAINED, with leave to amend.

Defendant The Hertz Corporation’s Demurrer is SUSTAINED, with 30 days leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court