Judge: Lynne M. Hobbs, Case: 22STCV18301, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV18301    Hearing Date: April 3, 2024    Dept: 30

ALEXANDER KANAKIS vs ANSCHUTZ ENTERTAINMENT GROUP, INC., A CORPORATION, et al

TENTATIVE

Defendants’ demurrer is OVERRULED. Defendants’ motion to strike is DENIED. Plaintiff is ordered to give notice.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at 747.)

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶7:85-7:86.) “A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1).) (CRC 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §436(a)-(b).) (See also Stafford v. Shultz (1954) 42 Cal.2d 767, 782 (“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded. [Citations]”).)

Meet and Confer

The demurrer is accompanied by the declaration of Priscilla Hernandez which satisfies the meet and confer requirements. (Code Civ. Proc. §§ 430.41 and 439(a)(2).)

Discussion

A. Demurrer

Defendants demur to the third cause of action for Negligent Hiring, Supervision, Training, and Retention, arguing the FAC does not state facts sufficient to constitute a cause of action and is uncertain.

A cause of action for negligent hiring, supervision, or retention of an employee requires the following elements: (1) the employer hired employee; (2) the employee was/became unfit or incompetent to perform the work for which he was hired; (3) the employer knew or should have known the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the employer’s negligence in hiring/supervising/ retaining the employee was a substantial factor in causing plaintiff’s harm. (CACI No. 426; see also Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring or retaining the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.) Negligent hiring, retention, or supervision is a form of direct negligence. (Ibid.)

Defendants argue that the FAC is unclear as to whether Defendants hired an employee and/or independent contractor; fails to plead any facts that an unidentified employee was unfit; and that Defendants knew the employee was unfit.

I. Liability for Hiring Independent Contractor?

Defendants argue that Plaintiff has attempted to cure the defects found by the Court by new, non-factual and uncertain allegations of a “special employment joint responsibility relationship” and “dual employment” status of each and every person retained in any manner by each and every defendant (including “contractors”). However, Defendant argues that California law does not allow recovery for Negligent Hiring, Supervision and Retention on a “dual employment” basis.

In the last ruling on Defendant’s demurrer, this Court noted that the complaint failed to allege an employee, rather than an independent contractor, was hired, and that Plaintiff had not alleged any factual allegations to overcome the general rule of nonliability for the hirer of an independent contractor for the negligent acts of the contractor. (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107.) In Johnson, the court noted that the plaintiff had “found no authority for the proposition that the hirer of an independent security agency is liable for the negligence of the agency's employees. That is not surprising since ‘[a]t common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ‘ “no right of control as to the mode of doing the work contracted for.” ’ ” (citing Privette v. Superior Court (1993) 5 Cal.4th 689, 693; Johnson, supra, 204 Cal.App.4th at 1107.)

There are certain exceptions to the Privette doctrine. In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the California Supreme Court held that where a landowner both retained control over the independent contractor’s work, and “exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee,” the Privette doctrine would not prevent the injured employee from suing the landlord. (Id. at 210-212 [emphasis in original].)

To cure this defect, the FAC alleges that Defendants, and each of them, controlled all aspects of the Festival, including direct control over the personnel of the various entities contracted to do work at the concert and specifically on the stage, by, for example, requiring said persons to work 30 hour shifts, without break, which led to an incredible amount of fatigue to said persons working on the stage so that the safety measures which could have prevented this incident were not followed, thereby directly rendering said persons on the stage unfit to perform, constituting a substantial factor in causing Plaintiff’s harm. (FAC, ¶ 50.)

The FAC further alleges that as a direct and proximate result of the aforementioned breaches of defendants’ duties, the Light came loose and fell from its mounting directly onto plaintiff, causing bodily injuries. (Id., ¶ 51.)

The Court finds that these allegations are sufficient to withstand demurrer. The FAC alleges sufficient facts to show that the Hooker exception to Privette applies. The FAC alleges that Defendants retained control over the festival and specifically on the stage, and that retained control affirmatively contributed to Plaintiff’s injuries because the employees became fatigued due to the long hours they had to work, which caused the light to become loose and fall from its mounting onto Plaintiff.

II. Unfit Employees, and Defendant Knew or Should have Known of Unfitness

As to the remaining elements of the third cause of action Defendants argue are defectively pled, the Court finds that Plaintiff’s FAC states sufficient facts to constitute a cause of action for negligent hiring, supervision, training and retention. The FAC alleges that an employee/person became unfit because the employee/person was required to work 30-hour shifts without breaks, which caused the employee to become fatigued, and therefore disregard safety measures. Next, Defendants knew or should have known the employees were unfit due to fatigue because they were the ones making the employees work these 30 hour shifts without breaks. Further, the FAC lists a past incident that had occurred involving a light fixture falling from the stage, putting Defendants on either actual or constructive notice.

Based on the foregoing, Defendants’ demurrer to Plaintiff’s cause of action for negligent hiring, supervision and retention is overruled.

B. Motion to Strike

Defendants also move to strike Plaintiff’s prayer for prejudgment interest and “the portion of the Prayer for Relief of the FAC in which Plaintiff seeks damages for ‘impaired enjoyment of life’ (i.e., hedonic damages).

The Court first notes that there is no prayer for hedonic damages in the FAC. Rather, hedonic damages are alleged throughout the FAC. Nevertheless, the analysis under section II will discuss the motion to strike the hedonic damages claim further.

I. Prejudgment Interest

Defendants argue that Plaintiff is not entitled to seek prejudgment interest because the amount of damages he claims is not certain since Plaintiff is claiming mental and emotional injuries, which are not readily subject to precise calculation.

Civil Code section 3287, subdivision (a) states, “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.”

“Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.” (Esgro Cent., Inc. v. Gen. Ins. Co. (1971) 20 Cal. App. 3d 1054, 1060.)

Civil Code § 3288 states: “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.”

“Similarly, absent oppression, malice, or fraud, prejudgment interest is not available under section 3288 on ‘damages for the intangible, noneconomic aspects of mental and emotional injury’ in noncontractual tort actions because such damages are ‘inherently nonpecuniary, unliquidated and not readily subject to precise calculation,’ and ‘necessarily left to the subjective discretion of the trier of fact.’” (Steinfeld v. Foote-Goldman Proctologic Med. Grp., Inc. (1997) 60 Cal. App. 4th 13, 21.) “Prejudgment interest under sections 3287 and 3288 in noncontractual tort actions is limited to ascertainable damages because the interest compensates the plaintiff for the loss of calculable funds that belonged to the plaintiff, or should have been paid to the plaintiff.” (Id.)

In opposition, Plaintiff argues he is entitled to prejudgment interest pursuant to Civil Code section 3291. Civil Code section 3291 provides that “[i]n any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of the other person, corporation, association, or partnership, and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.” (Civ. Code, § 3291.) Section 3291 further states that “[i]f the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.” (Id.)

Here, Plaintiff alleges that he sustained: “1) past and future medical expenses; 2) past and future loss of earnings; 3) loss of earning capacity; and 4) incidental expenses.” (FAC, ¶ 53.) Therefore, Plaintiff’s alleged past economic losses could be the basis for an award of prejudgment interest, subject to the jury or factfinder’s discretion. (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 524-528 [holding trial court erred in denying prejudgment interest for past economic losses in wrongful death action].)

The Court agrees with Defendants that Civil Code section 3291 appears inapplicable at this time because Plaintiff has not alleged or otherwise provided any information on whether he provided a settlement offer pursuant to Code of Civil Procedure section 998 to Defendant. Civil Code section 3291 provides that prejudgment interest is recoverable after an offer to compromise is made under Code of Civil Procedure section 998. (Cal. Civ. Code §3291; see also Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644, 662-63.) The plain language of the statute in which a plaintiff may lawfully claim interest on damages alleged “as provided in this section” clearly indicates that a Plaintiff must make an offer pursuant to Section 998 of the Code of Civil Procedure for a judgment to bear interest. This reading is also consistent with the policy to promote settlement behind section 3291. (See Ray v. Goodman (2006) 142 Cal. App. 4th 83, 91; see also Lakin, supra, at 663.)

Nevertheless, the prayer seeks prejudgment interest allowable by law. Thus, Plaintiff may be entitled to prejudgment interest for his special damages under Civil Code section 3288, or section 3287(a) once the special damages are calculated. As a result, the Court denies the motion to strike the prayer for prejudgment interest.

II. Hedonic Damages

Defendants argue that at various places in the FAC Plaintiff seeks damages for “impaired enjoyment of life.” Defendants contend such “hedonic” damages are disallowed under California law. (Loth v. Truck Away Corp. (1998) 60 Cal.App.4th 575; Garcia v. Superior Court (1996) 42 Cal.App.4th 177.) Defendants also argue that Plaintiff’s claim for hedonic damages is duplicative of his claim for general damages and thus seeks a prohibited “double recovery” of such damages.

Hedonic damages are “damages to compensate for the loss of enjoyment of life.” (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 760.) “In California, a pain and suffering award may include compensation for the plaintiff’s loss of enjoyment of life. Loss of enjoyment of life, however, is only one component of a general damage award for pain and suffering. It is not calculated as a separate award.” (Id. at 763.)

Defendants’ argument is unpersuasive. Loss of enjoyment of life is not disallowed under California law. Further, there is no risk of double recovery because there is no additional prayer for “hedonic” damages in the FAC, as noted above. Rather, the FAC clearly indicates that Plaintiff includes impaired enjoyment of life as one component of his claim for general damages.

Thus, the motion to strike is denied in full.

Based on the foregoing, Defendants’ demurrer is OVERRULED. Defendants’ motion to strike is DENIED.