Judge Lee W. Tsao, Case Number: 22NWCV01050, Date: 2024-01-03 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01050, Date: 2024-01-03 Tentative Ruling

Case Number: 22NWCV01050 Hearing Date: February 7, 2024 Dept: C

arambula v. decora, et al.

CASE NO.: 22NWCV01050

HEARING: 2/7/24 @ 9:30 AM

Defendants Joy Gordon and Josephine Decora’s Demurrers are OVERRULED.

Plaintiff to give NOTICE.

Defendants Joy Gordon (Gordon) and Josephine Decora (Decora) (collectively Defendants) demur to Plaintiff Janelle Arambula’s (Plaintiff) Complaint.

Background

Plaintiff filed a Complaint against Defendants Josephine Decora, Joy Gordon, and Jane Doe for injuries sustained from an alleged assault and battery which occurred on October 1, 2020, while Plaintiff was responding to Defendant Doe’s mental health emergency as part of a local medical response team. Plaintiff alleges that she was approached by Defendant Doe while Defendant Doe was in an erratic and altered state upon arrival at the scene. Defendant Doe assaulted Plaintiff while Plaintiff was waiting at the entrance to Defendant Doe’s residence. (Compl. ¶ 8.) Plaintiff alleges that Defendants Josephine Decora and Joy Gordon owned the property where the incident occurred. Plaintiff alleges five causes of action against Defendant Doe for:

1. Assault

2. Battery

3. Intentional Infliction of Emotional Distress

4. Negligence

5. Negligent Hiring

Plaintiff alleges the Fourth and Fifth Causes of Action only against Defendants Decora and Gordon.

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).) “‘[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’” (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78-79.)

Meet and Confer

The parties have adequately met and conferred.

Discussion

Defendants demur to the Fourth and Fifth Causes of Action for Negligence and Negligent Hiring respectively. The elements of negligent are: (1) A duty; (2) breach of the duty; (3) causation; and (4) damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The elements of negligent hiring are: (1) an employer hiring an employee; (2) the employee is incompetent or unfit; (3) the employer had reason to believe the employment caused an undue risk of harm; (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.)

Defendants argue that the Fourth and Fifth Causes of Action for Negligence and Negligent Hiring are barred by the primary assumption of risk doctrine. “Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001.) The primary assumption of risk applies to health care workers who are working with patients known to have violent tendencies from mental afflictions. (Id. at 1000.) However, the court in Cott ruled that defendants may still be liable where “caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.” (Ibid.) Here, it is not apparent from the allegations of the Complaint that the primary assumption of risk doctrine applies. The Complaint alleges that Plaintiff was working as health care worker at the time, however, it is not clear whether Defendants should have warned Plaintiff of Defendant Doe’s alleged violent tendencies or whether the violent tendencies were a symptoms of Defendant Doe’s mental condition. Thus, the Negligence cause of action is not barred as a matter of law by the primary assumption of risk on the face of the Complaint. Therefore, Defendants’ demurrer is not sustained on the basis of the primary assumption of risk doctrine.

Defendants argue that the Fifth Cause of Action for Negligent Hiring fails to state a cause of action because Plaintiff did not plead that Defendant Doe’s conduct was foreseeable and that Defendants owed Plaintiff a duty to control Defendant Doe. First, Plaintiff has adequately alleged that Defendant Doe was an employee of Defendant Decora. “Defendants, and each of them, were the agents, servants, and employees of their co-defendants ….” (Compl. ¶ 5.) Thus, Plaintiff has adequately alleged that Defendants owed a duty to Plaintiff to protect against harm from her alleged employee Defendant Doe. Second, Plaintiff has adequately pled that Defendants knew or should have known her alleged employee, Defendant Doe, was unfit for employment. (Compl. ¶¶ 41-42.) Thus, Plaintiff has adequately pled a cause of action for Negligent Hiring. Defendants’ demurrer to the Fifth Cause of Action is overruled.

Accordingly, Defendants’ Demurrers are OVERRULED.