Judge Jill Feeney, Case 22STCV15571 2022-10-24 Tentative Ruling

This is an action for motor vehicle negligence, negligence per se, and negligent hiring, supervision, and retention arising from a vehicle collision that took place in October 2021. Plaintiff Luis Rodriguez filed his Complaint against Avim R. Jones, the Lost Angeles County Metropolitan Transportation Authority (“MTA”), and the Los Angeles County Board of Supervisors.

MTA demurs to Plaintiff’s third cause of action on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action for negligent hiring, supervision, and retention.

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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc., Section 430.41.) Here, the requirement has been met. (Ozeran Declaration at paragraph 3.)

MTA demurs to Plaintiff’s third cause of action for negligent hiring, retention, and supervision on the grounds that the Complaint does not allege any facts that would support this cause of action.

“‘California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee…Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’… ‘A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver…That same awareness underlies a claim for negligent entrustment. [Citation.] In a typical case…the two claims are functionally identical.’” (McKenna v. Beesley (2021) 67 Cal.App.5th 552.)

Here, Plaintiff’s Complaint alleges Plaintiff’s vehicle collision took place on or about October 19, 2021. (Compl., ¶8.) Defendant Jones was the operator of a Metro Bus for MTA. (Compl., ¶9.) While Plaintiff was at a complete stop at a red light, Jones failed to stop his bus and collided with the rear of Plaintiff’s vehicle. (Compl., ¶¶11-12.) MTA “negligently hired JONES failing to conduct an adequate investigation and or background check of” Jones. (Compl., ¶33.) Jones was “incompetent to perform the work for which he was hired when driving inattentively.” (Compl., ¶34.)

Plaintiff’s Complaint fails to state facts necessary to sustain a cause of action for negligent hiring, supervision, and retention. As pled, the Complaint states that Jones rear-ended Plaintiff, Jones was driving inattentively at the time of the accident. The Complaint does not contain facts that MTA knew or should have known that Jones was an inattentive driver or that he was unfit or incompetent to drive. Although the Complaint states MTA failed to perform background checks, there is no allegation that MTA would have discovered anything relevant if it had performed such a check on Defendant Jones.