Judge Kevin C. Brazile, Case Number: 23STCV10938, Date: 2023-10-18 Tentative Ruling

Judge: Kevin C. Brazile, Case: 23STCV10938, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV10938 Hearing Date: October 18, 2023 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Wednesday, October 18, 2023

Case Name: Sato v. ABM Industry Groups, LLC, et al.

Case No.: 23STCV10938

Motion: Demurrer

Moving Party: Defendants ABM Industry Groups, LLC and ABM Industries Incorporated (“Defendants” or “ABM”)

Responding Party: Plaintiff Emerson Sato (“Plaintiff”)

Notice: OK

Ruling: The Demurrer is OVERRULED.

Moving Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

BACKGROUND

On May 16, 2023, Plaintiff Emerson Sato filed this employment action against Defendants ABM Industry Groups, LLC, ABM Industries Incorporated, Cedars-Sinai Medical Center, and Mercedes Del Cid. Plaintiff alleges twenty different employment-related causes of actions.

On July 20, 2023, ABM Defendants filed this demurrer as to the fourteenth and fifteenth causes of action for negligent hiring and retention and intentional infliction of emotional distress.

DISCUSSION

Applicable Law

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “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. 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.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Application to Facts

ABM Defendants argue that Plaintiff’s fourteenth and fifteenth causes of action fail to state a claim.

14^th cause of action for negligent hiring and retention

ABM Defendants argue that Plaintiff cannot state a claim for negligent hiring and retention against ABM because ABM never hired Ms. Del Cid. Ms. Del Cid was the employee of Cedars Sinai. (Complaint ¶ 7.) Additionally, they argue that the claim cannot be based on an unidentified ABM supervisor or manager.

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Viewing the complaint in the light most favorable to Plaintiff, the Complaint sufficiently states a cause of action for negligent hiring and retention. Plaintiff alleges that Plaintiff was subjected to age discrimination, harassment, and retaliation by ABM. (See generally Complaint.) Plaintiff alleges that ABM had knowledge that its employees, supervisors, or managers were likely to engage in harassment, discrimination, and other creations of a hostile work environment. (Complaint ¶ 374.) As pled, the cause of action for negligent hiring and retention is not based on Ms. Del Cid’s conduct. As such, the cause of action does not fail because Ms. Del Cid was not an employee of Defendants.

Defendants also argue that the Complaint does not have any factual allegations to support the claim and that the Complaint is so ambiguous and uncertain that it deprives Defendants of the ability to prepare a defense. Specifically, Defendants argue that they cannot determine from the Complaint who ABM negligently hired or retained that was allegedly unfit or incompetent. However, Defendants cite to no authority that requires a plaintiff to plead the specific employee(s) that were negligently hired to survive a demurrer. In fact, the authority Defendants’ cite to states that “a cause of action may be stated in which negligence is alleged in general terms, without detailing the specific manner in which the injury occurred,” so long as the plaintiff alleges “the acts or omissions which are said to have been negligently performed.” (See Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101.) The Complaint outlines instances of harassment, discrimination, and other employment-related violations by Defendants. The Court does not find that Plaintiff was required to list the specific employees that were allegedly negligently hired or retained. (See C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 [finding that a complaint was not required to identify by name or position the defendant’s “employees, administrators and/or agents” who allegedly failed to “properly hire, train and supervise [plaintiff].”]

Further, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) The Complaint is not ambiguous nor uncertain. As such, the demurrer to the fourteenth cause of action is overruled.

15^th cause of action for intentional infliction of emotional distress

Next, Defendants argue that the fifteenth cause of action for IIED fails because the IIED claim is based on Ms. Del Cid’s conduct, which cannot be imputed to ABM. Additionally, they argue that the claim cannot be based on an unidentified ABM supervisor or manager.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

Although the IIED claim is also asserted against Ms. Del Cid, the IIED cause of action is not solely predicated on Ms. Del Cid’s conduct. The Complaint states that Defendants’ acts or omissions include “violations of FEHA, CFRA, FMLA, Kin Care, Paid Sick Leave, Labor Code provisions,…and public policy violations….” (Complaint ¶ 391.) The Complaint further details the conduct by Defendants’, stating that ABM subjected Plaintiff to discrimination, harassment, retaliation, mistreated Plaintiff based on his race by denying him performance reviews, and pay increases. (Complaint ¶¶ 22-23.) The Complaint further alleges that ABM subjected Plaintiff to unsafe working conditions such as mold, asbestos, unsafe Covid safety protocols, and rodents. (Complaint ¶ 24.) These allegations sufficiently allege extreme and outrageous conduct to survive the demurrer stage.

Defendants further allege that this claim fails because there are no factual allegations, and the Complaint does not plead who at ABM engaged in extreme and outrageous conduct. Again, Defendants cite to no authority that states that a plaintiff must plead the specific employee(s) that engaged in extreme and outrageous conduct to state a claim for IIED. As such, the demurrer is overruled.

CONCLUSION

The Demurrer is OVERRULED.

Moving Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.