Judge Jill Feeney, Case 21STCV16740 2023-02-21 Tentative Ruling

Plaintiff Sosen Khodickian commenced this action against Defendants Bruininga, Inc. dba Billy’s Plumbing and Rooter (Defendant or Billy’s Plumbing), Edgar Lemus (erroneously sued and served as Edwin Lumas), and Does 1 to 20, due to Lemus allegedly pretending Plaintiff had a bug on her back and buttocks in order to sexually touch Plaintiff when Lemus was doing repairs at Plaintiff’s home on behalf of Billy’s Plumbing on June 26, 2020.

Defendant moves for judgment on the pleadings on the ground that the FAC (1) fails to plead sufficient facts to support a cause of action for sexual battery, (2) fails to support a cause of action for battery, (3) fails to support a cause of action for assault, (4) fails to support a cause of action for Intentional Infliction of Emotional Distress (“IIED”), and (5) fails to support a cause of action for Negligent Infliction of Emotional Distress (“NIED”). Essentially, Defendant contends that it as a corporation cannot be liable for the acts of its employee, Defendant Lumas.

Plaintiff argues Defendant’s motion is untimely because it was brought after the initial trial date. Plaintiff also argues that the motion is brought on the same exact grounds as those previously raised by demurrer, except with respect to the fifth cause of action for NIED. With respect to the cause of action for NIED, Plaintiff contends that the complaint was amended to cure the deficiencies raised by the Court when it granted the demurrer with leave to amend as to this cause of action.

Defendant contends that the motion is timely because motions for judgment on the pleadings may be brought at any point prior to trial. Additionally, Defendant argues that Plaintiff’s FAC alleges new facts that Defendant, through its officer, director, or managing agent, had advance knowledge of the unfitness of Defendant Lumas, that he was not properly hired, trained, supervised, or retained. Defendant states that it did not demur to the FAC which contains these new allegations.

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply. Thus, a motion by a defendant may be made on the ground that the court “lacks jurisdiction of the subject of one or more of the causes of action alleged”, or the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., section¿438(c).) A defendant may file a motion for judgment on the pleadings at any time after the time to demur to the complaint has passed. (Code Civ. Proc., sections 430.40, subd. (a), 438, subd. (f)(2).)

If a moving party has already demurred to the complaint and the demurrer was overruled, a motion for judgment on the pleadings may only be made on the same grounds as the previous demurrer if there has been a material change in applicable case law. (Code Civ. Proc., section 438, subd. (g)(1).) A motion may be made if the moving party did not demur to the complaint on the same grounds alleged in the motion. (Code Civ., proc., section 438, subd. (g)(2).)

On August 27, 2021, the Court overruled in part and sustained in part Defendant’s demurrer to Plaintiff’s original complaint. On September 1, 2021, Plaintiff filed a FAC which added that “Billy’s Plumbing, through its officer, director, or managing agent, had advance knowledge of the unfitness of Lumas, that he was not properly hired, trained, supervised, retained, and employed him with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct…and was aware that Lumas had engaged in similar prior conduct…but retained Lumas in spite of this advance knowledge.” (FAC, ¶5.) Additionally, the FAC states that Lumas owed a duty of care to Plaintiff not to touch Plaintiff or her private parts without consent and that Billy’s Plumbing owed a duty of care to ensure that their employee, Lumas, was appropriately trained, supervised, and retained, and employed before deploying him to someone’s home. (FAC., ¶39.) Lastly, the FAC added that Billy’s Plumbing failed to exercise ordinary care and skill in hiring, training, supervising, retaining, and employing Lumas, even though an officer, director, or managing agent had advance knowledge of Lumas’s unfitness and employed him with a conscious disregard for Plaintiff’s rights or safety. (FAC, ¶40.)

Defendant demurred to Plaintiff’s first through third causes of action for sexual battery, battery, and assault on the grounds that the Complaint failed to state a cause of action against Defendant Billy’s Plumbing. The Court overruled the demurrer on these grounds because the Complaint sufficiently alleged that Lumas was Billy’s Plumbing’s employee and that Billy’s Plumbing ratified Lumas’s conduct. Thus, Billy’s Plumbing is liable for Lumas’s conduct under Civ. Code, section 2339. Here, Defendants make their MJOP on the same grounds that the FAC fails to state a cause of action against Billy’s Plumbing. Defendants’ MJOP is nearly identical to the demurrer filed in 2021. Although Plaintiff’s FAC now alleges new facts pertaining to Billy’s Plumbing’s advance knowledge of Lumas’s unfitness and that he was not properly hired, trained, supervised, or retained, the substance of Plaintiff’s first three causes of action remain unchanged. Thus, Defendants’ MJOP is denied as to the first three causes of action.

Defendant also demurred to Plaintiff’s cause of action for IIED on the grounds that the Complaint failed to state facts that show Defendant’s conduct was extreme and outrageous. The Court overruled the demurrer on the grounds that Lumas’s conduct touching Plaintiff’s body without consent under false pretenses was outrageous. In the instant motion, Defendant makes its MJOP on the same grounds, arguing that the conduct was not extreme and outrageous.

Defendant now also argues that the FAC fails to state a cause of action against Billy’s Plumbing because Plaintiff cannot seek recovery under respondeat superior. However, as with Plaintiff’s first three causes of action, the FAC adequately alleges that Billy’s Plumbing authorized or ratified Defendant Lumas’s conduct. Thus, the intentional tort of IIED is adequately alleged against Defendant Billy’s Plumbing under Civil Code, Section 2339. Defendant’s MJOP is denied as to the cause of action for IIED.

“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)

To state a claim for NIED, “the plaintiff must establish the elements of duty, breach of duty, causation, and damages. The distinction between the ‘bystander’ and the ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff. ‘Bystander’ claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a ‘direct victim’ arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff.” (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009.) The direct victim theory involves a duty owed directly to the plaintiff “that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”¿(Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.¿(1989) 48 Cal.3d 583, 590, 257 Cal.Rptr. 98, 770 P.2d 278.)

The FAC now states that Billy’s Plumbing owed Plaintiff a duty to ensure that its employees were properly hired, trained, supervised, and retained before deploying an employee to Plaintiff’s home. Billy’s Plumbing failed to exercise ordinary care in hiring Lumas and knew of his unfitness as an employee. Billy’s Plumbing knew that Lumas had engaged in similar prior conduct. Because the FAC alleges that Billy’s Plumbing was providing a service to Plaintiff and dispatched Lumas to Plaintiff’s home, there are sufficient facts alleged that Billy’s Plumbing had a duty to protect Plaintiff from Defendant Lumas’s conduct that arose from Plaintiff’s relationship with Billy’s Plumbing. There is no requirement that a special relationship exist between the parties in a direct victim case. Therefore, Defendants’ MJOP is denied with respect to this ground.