Judge: Martha K. Gooding, Case: 2022-01260127, Date: 2022-10-24 Tentative Ruling
1) Demurrer to Amended Complaint
2) Case Management Conference
The Demurrer by Defendant Regency Real Estate Brokers (“Defendant”) to Plaintiff Joseph Crevier’s First Amended Complaint (“FAC”) is OVERRULED.
The premise of, and sole basis for, Defendant’s demurrer is that Plaintiff alleges no conduct by Defendant, and Plaintiff therefore fails to state a cause of action against it.
But Plaintiff alleges that Defendant is responsible for Farris’ conduct. Arguably, Plaintiff thus implicitly alleges that Farris is Defendant’s employee or agent. Plaintiff has also alleged that all defendants are each other’s agents or employees acting within the scope of their agency/employment. [FAC ¶7.]
Unless required by or under the authority of law to employ
that particular agent, a principal is responsible to third persons for the
negligence of his agent in the transaction of the business of the agency,
including wrongful acts committed by such agent in and as a part of the
transaction of such business, and for his willful omission to fulfill the
obligations of the principal.
Civ. Code § 2338.
Specific to the real estate agent and broker relationship:
Salespersons are employees or agents of the broker as a matter of law. For purposes of the administration of the Real Estate Law and the obligations of the broker and salesperson to the public or to the principal, the salesperson is an employee of the real estate broker.1 All acts of a salesperson or broker associate (i.e., a licensed broker acting under the license of another broker) are considered as the acts of the employing broker,2 and the employing broker is responsible for the acts of all salespersons and brokers licensed under the employing broker within the course and scope of their employment.3 For some purposes, the Real Estate Law has been amended to provide that a salesperson is “retained” by the broker under whose license he or she is engaged,4 and the term “retained” can mean either an employee or an independent contractor relationship.5 Regardless of the characterization of the relationship between a broker and a salesperson by the terms of their employment contract, however, for purposes of administration by the Real Estate Commissioner, and defining the obligations of licensees to members of the public, their relationship is the same.
2 Cal. Real Est. § 3:31 (4th ed.).
An employer may be vicariously liable under the doctrine of respondeat superior for torts committed by employees:
(1) in the course and scope of employment, and
(2) if there exists a reasonable relationship between the duties of employment and the conduct causing injury, or
(3) the injury was reasonably foreseeable in light of the employer’s business or employee’s job responsibilities.
Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298; Baptist v. Robinson (2006) 143 Cal. App. 4th 151, 161; Bailey v. Filco, Inc. (1996) 48 Cal. App. 4th 1552, 1559–60.
On demurrer, a complaint must be liberally construed. Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 601. All material facts properly pleaded, and reasonable inferences, must be accepted as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 966-67.
The question is whether Plaintiff has alleged enough to allege Defendant is responsible for Farris conduct, whether by agency or respondeat superior liability.
The Court finds that, for pleading purposes, Plaintiff has.
Demurrer is overruled. Defendant is ordered to give notice.