Judge: John J. Kralik, Case: 24BBCV00258, Date: 2024-12-06 Tentative Ruling

Case Number: 24BBCV00258    Hearing Date: December 6, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of Complaint

This case arises from allegations of sexual misconduct. On January 30, 2024, Milagro Hernandez, in pro. per., (“Plaintiff”), filed a complaint on Judicial Council form PLD-PI-001, alleging causes of action for (1) intentional tort (intentional infliction of emotional distress) and (2) general negligence against Defendants Costco Wholesale Corporation (“Costco”), “Miguel”, and DOES 1-100.

On February 2, 2022, Plaintiff completed her purchase at the Costco store located at 1051 W. Burbank Bl., Burbank, CA 91501. (Complaint, ¶ IT-3.) Plaintiff alleges that while checking her receipt, Miguel, an employee of Costco, held Plaintiff’s receipt directly over his private parts. (ibid.) Plaintiff also alleges that when she inquired what he was doing with her receipt, Miguel responded incoherently. (ibid.)

B.     Motion on Calendar

            On November 1, 2024, Defendant Costco filed a Demurrer and Motion to Strike Plaintiff’s complaint. As of December 2, 2024, the demurrer and motion to strike remain unopposed.

C.     Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Civ. Code § 430.41(a).)

On review of the Declaration of Jessica L. Ortega, the Court notes that Costco has satisfied its meet and confer obligation prior to filing the instant motion, as Civ. Code §§ 430.41(a), 435.5(a), require meeting and conferring “in person or by telephone.” On October 29, 2024, Defense counsel and Plaintiff discussed the merits of this demurrer by telephone. (Ortega Decl. ¶ 4.)

DISCUSSION

Demurrer      

Legal Standard

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.) “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 v. Mirda (2007) 147 Cal.App.4th 740, 747.)

A.    Intentional Infliction of Emotional Distress (First Cause of Action)

1.      Vicarious Liability

Costco demurs to the first cause of action on the grounds that Plaintiff has not sufficiently alleged a viable IIED cause of action. (Demurrer, p. 5:8-11.) Moreover, Costco primarily argues that Plaintiff did not sufficiently allege a basis for vicarious liability for its employee’s actions because the tort was not committed in the scope of employment. (Demurrer, p. 4:18-20.)

An employer may be vicariously liable for an employee’s tort, even if it was malicious, willful, or criminal if the employee’s acts was an “outgrowth” of his employment, “inherent in the working environment,” “typical of or broadly incidental to” the employer’s business, or, in a general way, foreseeable from his duties.¿ (Yamaguchi v. Harnsmut (2003) 106 Cal. App. 4^th 472, 482.¿ See also Flores v. Autozone West, Inc. (2008) 161 Cal. App. 4^th 373, 379; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4^th 291, 300-301.)

“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.¿ (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal. 3d 962, 967.)¿ Equally well established, if somewhat surprising on first encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.”¿ (Lisa M., supra, 12 Cal. 4th at 296-97.)¿ “While the employee . . . need not have intended to further the employer’s interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.”¿ (id. at 297.)¿ “The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from ‘but for’ causation.¿ That the employment brought tortfeasor and victim together in time and place is not enough. . . . [T]he incident leading to injury must be an ‘outgrowth’ of the employment; the risk of tortious injury must be ‘inherent in the working environment’ or ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.’”¿ (id. at 298 [citations omitted].)¿ “California courts have also asked whether the tort was, in a general way, foreseeable from the employee's duties. 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.’ The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.”¿ (id. at 299.)¿ 

The determination of whether an employee was acting within the scope of their employment is a question of fact to be decided by a jury.¿ However, when the facts are undisputed, it becomes a question of law.¿ (ibid.)¿ 

Here, Plaintiff alleges that the behavior of Costco’s employee fell within the scope of the employee’s employment. (Complaint, ¶ IT-2.) Plaintiff alleges that as Miguel checked her receipt, he touched the area of his clothing directly over his private parts with the receipt and held it there for a few moments. (id., at ¶ IT-3.) Plaintiff alleges that when she asked Miguel what he was doing, and why, Miguel responded incoherently. (ibid.) This is a dispute that arose during the course of Miguel’s employment with Costco, and on Costco’s behalf, since the issue arose during Miguel’s verification of the items Plaintiff purchased from Costco.

Plaintiff has sufficiently alleged the acts arose out of the course of employment and thus vicarious liability.

2.      Sufficiency of Pleading

            Costco also argues that Plaintiff has failed to sufficiently state a claim for IIED. (Demurrer, p. 4:18-20.)

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

Plaintiff’s IIED claim is based on the following allegations: While checking Plaintiff’s receipt upon exit, a Costco employee touched the area of his clothing directly over his private parts with Plaintiff’s receipt. (id., at ¶ IT-3.) When Plaintiff asked the employee what he was doing with the receipt and why he did that, the employee mumbled something incoherently. (ibid.)  Plaintiff asserts that the employee intended to cause Plaintiff’s emotional distress because the employee knew that Plaintiff was present when he touched himself with her receipt. (id., at ¶ IT-5.) To this bare statement of facts, Plaintiff has added the legal conclusions necessary to assert a claim for intentional infliction of emotional distress.

So far, the Plaintiff has alleged only a momentary, ambiguous gesture in which a receipt touched a part of the employee’s clothing near his sexual organs. There could be any number of innocent explanations for this event—which apparently lasted only a moment. Without more context, there insufficient pleading to establish a cause of action for intentional infliction of emotional distress. The general demurrer to the first cause of action is sustained with leave to amend.

            General Negligence (Second Cause of Action)

Costco demurs to Plaintiff’s second cause of action on the grounds that Plaintiff failed to allege any facts to establish that Costco owed Plaintiff a duty, or that a duty arose due to a special relationship. (Demurrer, p. 6:1-6.) Moreover, Costco argues that the conduct of its employee was not foreseeable. (Demurrer, p. 6:8-13.)

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)  

Plaintiff’s second cause of action for negligence incorporates Plaintiff’s IIED cause of action by reference. (Complaint, ¶ GN-2.) Plaintiff’s negligence cause of action is also based on the allegation that Costco negligently hired Miguel. (Complaint, ¶ GN-3.) Plaintiff alleges that Costco had “or should have known” its employee was unfit and unsuitable for the job. (ibid.) Plaintiff alleges that as a result of Costco’s negligence, Plaintiff suffered emotional distress. (Complaint, ¶ GN-4.)

            Plaintiff’s allegation that Costco should have known of its employee’s bad acts and failed to act is insufficiently pled. Plaintiff makes no allegation that the incident was reported, or whether any prior complaints were made about Miguel to Costco.

A complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (CCP § 425.10(a)(1).) A demurrer accepts as true all well pleaded and judicially noticeable facts, but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) While the test for allegations of facts or conclusions of law is not absolute, the court looks to whether the pleading as a whole apprises the defendant of the factual basis of the claim, and the particularity of facts required depends on the extent to which the defendant needs detailed information. (See Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 718–721.)

Plaintiff has not sufficiently alleged that Costco knew of prior bad acts by the employee, as Plaintiff has not alleged any similar bad acts have occurred and been reported before. The Court should therefore sustain the demurrer to this cause of action with leave to amend.

Motion to Strike

Legal Standard

Civ. Code §436 provides that the Court may, upon a motion made pursuant to Civ. Code §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or 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.”   

Defendant moves to strike the complaint’s prayer for punitive damages. (Motion to Strike, p. 3:10-12.)

Given that the Court has sustained the demurrer to the cause of action for intentional infliction of emotional distress, the court will do likewise with the motion to strike. The motion is granted with leave to amend.

CONCLUSION AND ORDER

Defendant Costco Wholesale Corporation’s demurrer to Plaintiff’s complaint is sustained with 20 days leave to amend. The motion to strike is granted with 20 days leave to amend.

Defendant Costco Wholesale Corporation shall provide notice of this order.

DATED: December 6, 2024                                       ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court