Judge Lee W. Tsao, Case 21STCV22341 2023-01-12 Tentative Ruling

Judge: Lee W. Tsao, Case: 21STCV22341, Date: 2023-01-12 Tentative Ruling

Case Number: 21STCV22341 Hearing Date: January 12, 2023 Dept: C

HERNANDEZ v. AVILA

CASE NO.: 21STCV22341

HEARING: 01/12/23

TENTATIVE ORDER

Defendant WHITTIER GIRLS SOFTBALL LEAGUE’s Demurrer to Plaintiffs’ First Amended Complaint is SUSTAINED with 20 days leave to amend.

Moving Party to give Notice.

This personal injury action was filed by Plaintiffs on June 15, 2021. On February 4, 2022, the operative form First Amended Complaint (“FAC”) was filed.

The FAC alleges that Plaintiff JOHN MANUEL HERNANDEZ, JR. (“JMH”) was attending a Whittier Girls Softball League event to deliver some athletic apparel for the team. Plaintiffs allege that, at the event, “JMH was approached by TONY AVILA [Avila] in a belligerent manner…. As the manner of AVILA continued to escalate, JMH yelled for the League President MOSES GALICIA [Galicia] to intervene. He arrived and placed himself in between AVILA and JMH. AVILA was able to initiate physical contact by grabbing JMH, which JMH was able to defend against, but the confrontational attitude of AVILA continued to escalate. GALICIA did not do anything but stand there…. The entire event stemmed from activity of the League and the League President GALICIA was not only unreasonably ineffective but was itself a cause of additional harm. As this occurred at a League event and dealt with League issues the conduct of the League President is attributable to the League under a theory of respondeat superior liability….” (FAC p. 5.)

The FAC asserts the following causes of action: (1) General Negligence; and (2) Assault and Battery.

Defendant WHITTIER GIRLS SOFTBALL LEAGUE generally demurs to each cause of action.

First Cause of Action – Negligence

“The doctrine of respondeat superior is an exception to the general rule that liability follows fault. Respondeat superior generally imposes liability on an employer when its employee engages in tortious conduct while acting within the course and scope of employment. In such cases, the faultless employer may be held vicariously liable for the employee’s actions on the theory that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities. [Citation.] The employer’s liability thus extends beyond the employer’s actual or possible control of the employee to include risks inherent in or created by the enterprise. [Citation.] It follows…that a plaintiff seeking to impose liability on a theory of respondeat superior must show that the employee’s tortious conduct was committed within the course and scope of employment. [Citation.]” (Juarez v. Boy Scouts of America (2000) 81 Cal.App.4th 377, 393-394.) The required causal nexus is that the conduct must “be engendered by or arise from the work.” (Lisa M. v. Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298.) “The employee’s activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment. [Citations.] Whether the tort occurred within the scope of employment is a question of fact, unless the facts are undisputed.” (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057.)

Plaintiffs do not allege these facts here. As pled, it is unclear what tortious conduct Galicia engaged in for which Whittier Girls Softball League should be held vicariously liable. It is also unclear what duty, if any, Whittier Girls Softball League owed to Plaintiffs during the incident. The demurrer is SUSTAINED with 20 days leave to amend.

Second Cause of Action – Assault and Battery

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed [she] was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. [Cite.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

First, Plaintiffs do not allege that Galicia (the President of Whittier Girls Softball League) either threatened harmful contact, or caused harmful contact. Second, Plaintiffs do not allege that Whittier Girls Softball League-- Galicia’s employer acted with intent. The demurrer to the second cause of action is SUSTAINED with 20 days leave to amend.