Judge: Lisa R. Jaskol, Case: 22STCV15888, Date: 2023-10-17 Tentative Ruling

Case Number: 22STCV15888    Hearing Date: January 11, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On May 12, 2022, Plaintiff Jorge Luis Mata Hernandez (“Plaintiff”) filed an action against Defendants H&D Gateway LLC (“H&D”), Tomomi Sushi, Roberto Cortez (“Cortez”), and Does 1-30 for negligence (Lab. Code, § 3706 et seq.) and ratification of assault (Lab. Code, § 3602, subd. (b)(1). 

On September 29, 2023, Plaintiff amended the complaint to include Defendant W.Y. International, Inc. as Doe 11. 

On October 4, 2022, the Court sustained H&D’s demurrer to Plaintiff’s second cause of action for ratification of assault with 30 days leave to amend. 

On December 2, 2022, H&D filed an answer. On January 17, 2023, Tomomi Sushi filed an answer. 

On December 19, 2022, H&D filed a cross-complaint against Cross-Defendants Cortez, Pedro Rivera Garcia (“Garcia”), and Roes 1-20 for equitable indemnity, apportionment of liability, and contribution. 

On March 16, 2023, the clerk entered the defaults of Cross-Defendants Cortez and Garcia on the cross-complaint. 

On October 17, 2023, the Court granted Plaintiff’s motion for leave to file a first amended complaint. 

On October 25, 2023, Plaintiff amended the complaint to include Defendant Golden Lyon Investment Co. (“Golden Lyon”) as Doe 12. 

On October 26, 2023, Plaintiff filed a first amended complaint against H&D, Tomomi Sushi, Cortez, and Does 1-30 for “Negligence Pursuant to Cal. Lab. Code § 3706, et seq.” and “Ratification of Assault Pursuant to Cal. Lab. Code § 3602(b)(l).” 

On November 8, 2023, Plaintiff amended the first amended complaint to include Defendants W.Y. International, Inc. as Doe 11 and Golden Lyon as Doe 12. 

On November 28, 2023, H&D filed a demurrer to be heard on January 11, 2024. On December 28, 2023, Plaintiff filed an opposition. On January 4, 2024, H&D filed a reply. 

Trial is currently scheduled for October 21, 2024. 

PARTIES’ REQUESTS 

H&D requests that the Court sustain the demurrer to the second cause of action for ratification of assault. 

Plaintiff requests that the Court overrule the demurrer or grant leave to amend. 

LEGAL STANDARD 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

* * *

“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .” 

(Code Civ. Proc., § 430.10, subds. (e), (f).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint alleges the following: 

On or about April 07, 2022, Plaintiff and his co-worker Pedro Rivera (“Rivera”) arrived at work at 17 W. Main Street, in the City of Alhambra, County of Los Angeles ("premises").  H&D owned the premises and Tomomi Sushi operated a restaurant there.  H&D and Tomomi Sushi had hired Cortez, an unlicensed contractor, to do construction work on the premises.  To perform work at the premises, Cortez hired Plaintiff.  Rivera was Defendants’ employee. 

Rivera was carrying a firearm.  Around 11:30 a.m., while Plaintiff and his Rivera were taking a brief water break on the roof of the premises, Rivera discharged the gun, firing a single shot into Plaintiff’s arm and abdomen.  Trying to escape using a ladder, Plaintiff fell to the ground and suffered additional injuries.  

Cortez served as an accessory to Rivera’s actions by harboring, concealing, and assisting Rivera after the shooting. 

Cortez, H&D, and Tomomi Sushi knew Rivera possessed a firearm that he took to work, knew that Rivera had been arrested and/or had a criminal record for assault, and were present when Rivera exhibited dangerous and/or erratic behavior that could a pose a danger to others and/or knew he used drugs while on the job. 

B.   H&D’s demurrer 

H&D argues that it cannot be vicariously liable under Labor Code section 3602, subdivision (b)(1).  The statute provides in part: “An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:  (1) Where the employee’s injury or death is proximately caused by a willful physical assault by the employer.”

According to H&D, liability under the statute exists only when the employer (rather than a co-employee) commits the misconduct. (See Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1486 (Fretland) [“We hold that the doctrine of respondeat superior cannot be used to extend the section 3602, subdivision (b)(1) exception to exclusivity to an employer”]; Iverson v. Atlas Pacific Engineering (1983) 143 Cal. App. 3d 219, 222, 224.) According to H&D, the first amended complaint does not allege facts showing that H&D ratified Rivera’s conduct.  

H&D also argues Plaintiff’s ratification of assault claim is uncertain, ambiguous, and unintelligible because it does not explain what conduct H&D (and Cortez) allegedly engaged in to support a ratification claim.  H&D relies on caselaw rejecting claims against employers under Labor Code section 3602, subdivision (b)(1), based on actions by their employers. 

C.   Plaintiff’s opposition 

In his opposition, Plaintiff argues: (1) H&D hired an unlicensed contractor (Cortez) who did not maintain workers’ compensation insurance, (2) Cortez ratified Rivera’s conduct by harboring him after the shooting, and (3) Cortez’s conduct is attributable to H&D because Cortez was a supervisor employed by H&D.  Plaintiff relies on case authority holding that a landowner is considered to be the employer of an unlicensed contractor for purposes of tort liability under the doctrine of respondeat superior for the contractor’s tortious conduct. 

D.   Analysis 

Plaintiff disputes H&D’s reliance on Fretland, supra, 69 Cal.App.4th 1478,  arguing H&D “ignores the court’s remaining analysis explaining that ‘the prohibition against imposing vicarious liability on an employer does not apply when there was “positive misconduct” by the employer such as when the employer “ratified” the tortious conduct of its employee and thereby became “liable for the employee’s wrongful conduct as a joint participant.” ’ ”  (Opposition p. 7, citing Fretland, supra, 69 al.App.4th 1478, 1489.)  

However, Plaintiff has not pleaded any positive misconduct by H&D having to do with Rivera’s alleged shooting of Plaintiff or Cortez’s alleged harboring of Rivera.  (See Fretland, supra, 69 Cal.App.4th at p. 1491 [“Further, the exception to the exclusivity provisions for an employer's own misconduct does not apply in this case because the County did not ratify the assault and battery allegedly committed by Vadar”].) 

 Instead, Plaintiff argues that Cortez’s alleged harboring of Rivera can be imputed to H&D because Cortez was a “supervisor” for H&D.  According to Plaintiff, when Cortez harbored Rivera, H&D harbored Rivera as a matter of law.  (Opposition p. 8.)  The Court however concludes that an employer does not engage in “positive misconduct” that would subject it to liability under Labor Code section 3602, subdivision (b)(1), based on conduct by a “supervisor,” when the complaint does not allege facts showing that the supervisor acted for the employer in the matter at issue, namely, the harboring of Rivera. 

The Court sustains the demurrer with leave to amend. 

CONCLUSION 

The Court SUSTAINS Defendant H&D Gateway LLC’s demurrer with 30 days leave to amend. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.