Judge Lee W. Tsao, Case Number: 21STCV22341, Date: 2023-09-26 Tentative Ruling

Judge: Lee W. Tsao, Case: 21STCV22341, Date: 2023-09-26 Tentative Ruling

Case Number: 21STCV22341 Hearing Date: September 26, 2023 Dept: C

HERNANDEZ v. AVILA

CASE NO.: 21STCV22341

HEARING: 9/26/23

TENTATIVE RULING

Defendant Whittier Girls Softball League’s demurrer to Plaintiffs’ second amended complaint is OVERRULED. Defendant is ORDERED to file and serve its Answer within 10 days.

Opposing Party to give Notice.

Defendant Whittier Girls Softball League generally demurs to each cause of action.

The operative Second Amended Complaint (“SAC”) alleges that Plaintiff John Manuel Hernandez, Jr. (“JMH”) was attending a Whittier Girls Softball League event. Plaintiffs allege that at the event, Hernandez “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.” (SAC, ¶ GN-1(2) “The entire subject incident stemmed from activity of the League. Avila’s apparent and stated reason for approaching JMH was due to Avila’s claim that during a board meeting of the League, JMH had made disrespectful comments regarding the wife of Avila, who was the League’s board member. Although Galicia’s intervention in a reasonable and nonviolent manner, as the President of the association, could have de-escalated and even prevented the fight from happening, Galicia not only failed to take any action to mitigate or resolve the fight, he also joined the fray and assisted Defendants Avila, Jaimes, and Aguilar to beat up JMH more viciously by forcefully holding JMH on the ground. The intervention of the League President Galicia was not only unreasonably ineffective but was itself a cause of additional harm.” (SAC, ¶ GN-1(5).) “The liability of the League is therefore based upon its Respondent’s Superior liability for the conduct of its League President Galicia for his wrongful conduct in intervening in an argument over League activity between League members at a League event, but also upon its own negligence in its wrongful interference with the participation of the Hernandez family in public events of attending and participating at League events.” (SAC, ¶ GN-1(8).)

Based thereon, the SAC asserts causes of action for:

1. Negligence

2. Assault and Battery

1^st 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 allege that they were “attending a Whittier Girls Softball League event.” (GN-1(1)), however, Plaintiffs also allege that Plaintiff and Avila “went to another area of the school” (GN-1(2). If Plaintiffs “went to another area of the school,” it is unclear if the incident actually occurred at a Whittier Girls Softball League event. However, at this pleading stage, and as pled, the court will allow the SAC to survive demurrer.

¶ GN-1(5) alleges that Galicia “also joined the fray and assisted Defendants Avila, Jaimes, and Aguilar to beat up JMH more viciously by forcefully holding JMH on the ground.”

Demurrer is OVERRULED. The parties may conduct discovery to determine the factual basis supporting whether the incident occurred at a Whittier Girls Softball League event.

2^nd 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.)

The failure to discharge an employee who has committed misconduct may be evidence of ratification. The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee's conduct is generally a factual question. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.)

¶ GN-1(5) alleges that Galicia “also joined the fray and assisted Defendants Avila, Jaimes, and Aguilar to beat up JMH more viciously by forcefully holding JMH on the ground.”

Plaintiffs then allege that the Whittier Girls Softball League is responsible for Galicia’s actions. ¶ IT-1(8) alleges that the League “did not take any disciplinary action against its assailant members.”

Plaintiffs are cautioned that respondeat superior is not applied to acts outside the scope of employment. However, at this early pleading stage, the demurrer is OVERRULED, and the parties may conduct discovery regarding whether Galicia’s actions were in the scope of his employment.