Judge: Martha K. Gooding, Case: 22-01253849, Date: 2023-08-14 Tentative Ruling
1) Demurrer to Complaint
2) Motion to Appear Pro Hac Vice
3) Motion to Appear Pro Hac Vice
4) Case Management Conference
Before the Court are three motions. The first is a Demurrer by Defendant Charter Communications, Inc. (“Defendant Charter”); the other two are motions for pro hac vice admission by attorneys Sophie Green and Penny Reid, respectively.
Demurrer to Plaintiff’s Complaint
The Demurrer by Defendant Charter to the Complaint filed by Plaintiff Alma Luna (“Plaintiff”) is SUSTAINED in part and OVERRULED in part. The Demurrer is sustained, with leave to amend, as to Plaintiff’s first, second, third, and fourth causes of action. The Demurrer is overruled as to Plaintiff’s fifth cause of action. If Plaintiff wishes to amend, Plaintiff shall serve and file her Amended Complaint within 15 days.
1st – 3rd Causes of Action
Plaintiff alleges Defendant Miguel Zarate came to her apartment on or about April 14, 2020, to install cable service, and that he forcefully grabbed Plaintiff by “her arm and body (below waist) pressing Plaintiff’s entire body onto [his body], forcing Plaintiff’s body to be so close to the point that Plaintiff felt [his] erection on her body while [he] whispered ‘Estas Bien Buena’ in Plaintiff’ ear.” Plaintiff yelled and pushed Defendant Zarate off of her, and he fled the apartment. (Compl. ¶12.)
Plaintiff further alleges Defendant Zarate was an agent, servant, or employee of Defendant Charter at that time, and that he was acting “within the course and scope of said agency, service and/or employment.” (Compl. ¶ 4.)
Plaintiff alleges Defendant Charter is vicariously liable for Defendant Zarate’s alleged actions, because Defendant Zarate “acted in such a way which was incidental to the enterprise and employment of [Defendant Charter], thereby making such sexual conduct foreseeable.” (Compl. ¶¶ 22, 29, 37.)
The court treats a demurrer “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 471.)
Even after liberally construing the Complaint in favor of Plaintiff, the Court finds she has not alleged facts to support the imposition of vicarious liability against Defendant Charter. Aside from the conclusory allegation that Defendant Zarate acted “in such a way which was incidental to the enterprise and employment” of Defendant Charter, the allegations do not support a causal nexus to Defendant Zarate’s work, which must be more than a “but for” act of causation. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297–298.) Nor are there any facts alleged showing the alleged misconduct was “ ‘an outgrowth’ of the employment,” a risk that is “inherent in the working environment” or a risk “typical of or broadly incidental to the enterprise [the employer] has undertaken.” (id.)
The authorities cited by Plaintiff are inapposite. For example, in C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, the court found that respondeat superior liability may exist where there were sufficient allegations that the employer had ratified the employee’s alleged sexual misconduct, by “hiding” other known instances of sexual misconduct and no taking any disciplinary or preventative action, and destroying evidence of the past misconduct. (169 Cal.App.4th at 1112 [“The foregoing allegations that defendant, with knowledge of Mr. Gaspar's misconduct, continued to employ him and destroyed documents was sufficient to state a claim that it ratified his sexual misconduct”].) Another case cited by Plaintiff, Roe v. California Department of Developmental Services (N.D. Cal., May 26, 2017, No. 16-CV-03745-WHO) 2017 WL 2311303, at *4, involved alleged assault in the “psychiatric treatment context,” which “is distinct from the one-time relationship of an ultrasound technician and an expectant mother,” and “fostered a specific kind of relationship between [the psychiatric technician”] and Roe, the patient under his care.” (Roe, 2017 WL 2311303, at *4.)
Here, Plaintiff does not allege any sort of relationship between her and Defendant Zarate, a cable technician who came to her apartment to install cable services, that is similar or comparable to that involved in C.R. or Roe. Although the installation of cable services could require sending a cable technician to a customer’s home, nothing is alleged to suggest that the technician would need to be alone with the customer, would have any authority over the customer to insist that the customer be alone with him, or anything else of a coercive nature. As the Supreme Court noted in court in Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, “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.” (Id. at 1004–1005 [emphasis original].)
Thus, the Court sustains the demurrers with leave to amend.
4th & 5th Causes of Action
Plaintiff alleges Defendant Charter is liable for negligence because it “negligently, and or recklessly, and or carelessly” sent Defendant Zarate to her apartment to perform cable installation services, and that it had a duty “to use reasonable and due care in carefully selecting, retaining, and supervising their agents, servants and /or employees,” including Defendant Employee. (Compl. ¶¶ 41-42.) Plaintiff further alleges Defendant Charter is liable for negligent supervision because it had a duty to “properly screen, supervise, instruct and discipline such individuals as MIGUEL ANGEL ZARATE, to reasonably ensure the safety for Plaintiff, and other females in a similar position, at the subject customer homes,” and that it breached this duty “by failing to properly train, instruct, and appropriately discipline MIGUEL ANGEL ZARATE, for illegal and improper touching of females.” (Compl. ¶¶ 48-49.)
Defendant Charter contends these claims fail as a matter of law because Plaintiff must establish that Defendant “knew or should have known that [Defendant Zarate] presented the particular risk of sexually assaulting Plaintiff or other Charter customers” and the Complaint “fails to plead any facts to support such a finding, because Plaintiff does not allege that Zarate had a history of sexual misconduct, or that Charter knew or should have known of said history.” (Dem. at 5.) Defendant argues Plaintiff could not accurately amend the Complaint to make such allegations. (Id.)
The Court agrees Plaintiff’s Complaint fails to allege any facts that explain how Defendant Charter Communications acted “negligently, and or recklessly, and or carelessly” by sending Defendant Zarate to Plaintiff’s apartment. But it does allege that Defendant Charter failed to properly train, instruct, and appropriately discipline” Defendant Zarate, “for illegal and improper touching of females.”
It appears Plaintiff’s negligence claim may be based on the same allegations as her negligent supervision claim (in which case the two causes of action would be entirely duplicative), but the Court will grant Plaintiff leave to amend her negligence claim in the event that it is based on different facts.
Defendant Charter is ordered to give notice of the ruling on the Demurrer.
Pro Hac Vice Applications
The Applications by Defendant Charter for Pro Hac Vice Admission of attorneys Sophie Green and Penny Reid are both GRANTED.
The unopposed applications satisfy the requirements of Rule of Court 9.40. Sophie Green and Penny Reid are granted pro hac vice admission to this Court to represent Defendant Charter in this action.
Defendant Charter is ordered to give notice of the ruling on the Pro Hac Vice Applications.