Judge Lynne M. Hobbs, Case Number: 22STCV33496, Date: 2023-10-26 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV33496, Date: 2023-10-26 Tentative Ruling

Case Number: 22STCV33496 Hearing Date: February 1, 2024 Dept: 30

TENTATIVE

Defendant Montebello Unified School District’s demurrer is OVERRULED. Plaintiff 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.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Tatiana Moana which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.)

Discussion

Defendant Montebello Unified School District (“Defendant”) demurs to Plaintiff’s complaint as to all four causes of action against it for: (1) assault; (2) battery; (3) negligence; and (4) negligent hiring, supervision, and retention, on the grounds that the complaint fails to state sufficient facts to constitute causes of action against Defendant, who is a public entity.

Government Claims Act

Defendant argues that the SAC cites to no statutory basis to assert direct tort liability against a public entity.

Government Code § 815 provides, in pertinent part, that, except as otherwise provided by statute, a “public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Government Code § 815(a).) (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 341 (“A public entity…is subject to direct liability only as provided by statute or required by the state or federal Constitution. [Citations]”).) (See also San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427-428.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714.

Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

In opposition, Plaintiff argues that a public entity can be vicariously liable for torts committed within the scope of employment under Government Code section 815.2. Government Code section 815.2 provides that a public entity is vicariously liable for the torts of their employees committed within the scope of employment if the employee is liable. (Gov. Code § 815.2(a).) “This ‘[v]icarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior.’ [Citation.]” (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1382.) A school district is “vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee . . .” who is unfit for his or her job. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.) The Court agrees. The SAC, read liberally, alleges the Doe driver was employed by Defendant (SAC, ¶ 7), and acting within the scope of employment (Id., ¶ 16.) Thus, the demurrer is overruled on this basis.

Negligence

Defendant argues that it did not employ the van driver that harmed Plaintiff; Jorge’s did (SAC, ¶ 11), and thus owed no duty.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) Our Supreme Court has held that a school district’s administrative and supervisory employees have “a duty of reasonable care to protect a student from foreseeable dangers, including those from other school employees.” (C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at 869.)

“Ordinarily, negligence may¿be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation] However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable.¿Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’”¿(Lopez v. Southern Cal. Rapid Transit Dist.¿(1985) 40 Cal.3d 780, 795.)¿

However, the SAC alleges Doe-1 was an employee of Defendant (SAC, ¶¶ 7, 33), and Defendant owed a duty of care to Plaintiff. (Id., 33.) As such, the demurrer to the cause of action for negligence is overruled.

Negligent Hiring, Supervision, or Retention

Defendant argues that Plaintiff offers no facts to show that the District had any knowledge of Doe-1’s alleged bad acts. Nor does Plaintiff offer any facts to establish that the District acted negligently with regard to Jorge’s employee, Doe-1.

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.)

The Court disagrees. Plaintiff has alleged sufficient facts supporting the elements of the cause of action for negligent hiring, supervision, or retention – that Defendant hired the employee (SAC, ¶ 38), and that Defendant knew or should have known the employee was unfit (Id., ¶ 39). The FAC alleges that Defendant knew Doe-1 had a past history of getting in altercations with special needs students and engaging in other questionable conduct such as urinating in public while driving vans for special needs students. (Id., ¶ 14.) As to negligence, the SAC alleges that Doe-1’s unfitness and incompetence, which Defendant knew or should of known about, resulted in Doe-1 assaulting and battering Plaintiff when Plaintiff engaged in anticipated and expected behavioral challenges concomitant with his special needs status. (Id., ¶ 41.) The demurrer is overruled as to this cause of action.

Assault and Battery

Defendant argues that to the extent that Plaintiff alleges that the District should be held vicariously liable for the alleged acts of Jorge’s employee, the SAC nevertheless fails to state a cause of action. Defendant contends, assuming arguendo that Doe-1 were a District employee the California Supreme Court has made clear that an employer is not to be held vicariously liable for even its own employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes. (Farmers Ins. Group v. Cty. of Santa Clara (1995) 11 Cal.4th 992, 1004.) “[T]he intentional conduct must be foreseeable from the employee’s duties, which means ‘in the context of the particular enterprise,’ the conduct was ‘not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Id.)

“Whether a tort was committed within the scope of employment is ordinarily a question of fact; it becomes a question of law, however, where the undisputed facts would not support an inference that the employee was acting within the scope of his employment.” (John R. v. Oakland Unified Sch. Dist. (1989) 48 Cal. 3d 438, 447.)

Here, Plaintiff alleges that Defendants were the agent, employee, partner, or joint venturer of each other. (SAC, ¶ 7.) Plaintiff also alleges that on September 16, 2021, Plaintiff Andrew Flores rode a van driven by Doe-1. (Id., ¶ 14.) Plaintiff Andrew Flores engaged in anticipated and expected behavioral issues. (Id.) Doe-1 assaulted Plaintiff by violently punching him in the face and battering him. After punching Plaintiff, Doe-1 threatened Plaintiff. (Id., ¶ 15.) Doe-1’s assault and battery of Plaintiff arose from his employment status with Defendants. The assault occurred in the immediate course of an altercation between Doe-1 and Plaintiff which arose directly and proximately out of and was connected with the employment of Doe-1, and in the course and scope thereof, as Doe-1 was attempting to stop, or otherwise curtail, Plaintiff’s behavioral issues which included Plaintiff making noise and banging on the window of the van. Doe-1 assaulting and battering Plaintiff arose from the inherent risk of employing or hiring a driver who has authority to discipline students or riders who fail to follow protocol such as banging the window or kicking the window during the drive. (Id., ¶ 16.)

The Farmers Ins. Group court articulated what conduct falls within the scope of an employment relationship:

[n]otwithstanding the generally broad view given to scope of employment determinations, the law is clear that an employer is not strictly liable for all actions of its employees during working hours. Significantly, an¿employer will not be held vicariously liable for an employee's malicious or tortious conduct if the employee¿substantially¿deviates from the employment duties for personal purposes. [citation.] Thus, if the employee “inflicts an injury out of personal malice, not engendered by the employment” [citation] or acts out of “personal malice unconnected with the employment” [citation], or if the misconduct is not an “outgrowth” of the employment [citation], the employee is not acting within the scope of employment. Stated another way, “[i]f an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.”

(Farmers Ins. Grp. v. Cty. of Santa Clara (1995) 11 Cal. 4th 992, 1004–05.)

The allegations in the SAC, taken as true for purposes of a demurrer, suggest that the alleged assault and battery by Doe-1 was an “outgrowth” of his employment with Defendant. (See Carr v. Wm. C. Crowell Company (1946) 28 Cal.2d 652, 656-657 (“The evidence here presented indicates without conflict that the injury to plaintiff was an outgrowth of Enloe's employment. Not only did the altercation leading to the injury arise solely over the performance of Enloe's duties, but his entire association with plaintiff arose out of his employment on the building under construction. He had never seen plaintiff before the day preceding the accident, and had never conversed with him before the dispute over the plate. He testified in addition that he was not angry with plaintiff before the dispute; that he had no personal grudge against him; and that he threw the hammer immediately, without ‘winding up,’ on seeing the plate ‘go past (his) face.’”).)

Moreover, the SAC alleges sufficient facts to show Defendants ratified Doe-1’s conduct.

An employer may also be liable for an employee’s acts where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Baptist v. Robinson¿(2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Id.) “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.” (Id.)¿ “[For] adoption and ratification there must be some relation, actual or assumed, of principal and agent.” (Watkins v. Clemmer (1933) 129 Cal.App. 567, 572.) “A principal cannot ratify the act of the alleged agent, unless the agent purported to act on behalf of the principal.” (Emery v. Visa Internat. Service Ass’n (2002) 95 Cal.App.4th 952, 961, emphasis added.)

The SAC alleges that Defendant knew Doe-1 had a past history of getting in altercations with special needs students and engaging in other questionable conduct such as urinating in public while driving vans for special needs students. (SAC, ¶ 14.) However, Defendant did not undertake any steps or took inadequate steps to discipline Doe-1 or determine his unfitness for driving students. (Id., ¶ 11.) As such, based on these allegations of ratification, Defendant may be liable for its employee’s acts. The demurrer is also overruled as to the causes of action for assault and battery.