Judge: Maurice A. Leiter, Case: 22STCV32546, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV32546    Hearing Date: February 9, 2023    Dept: 54

Hearing Date: February 9, 2023

Department 54, Judge Maurice A. Leiter

(3) Demurrers to Complaint and Motions to Strike

Moving Party: Defendants Alpha Construction Co., Inc., McCadden Plaza Tay Housing LP, and Los Angeles LGBT Center

Responding Party: Plaintiff Aryand Arshadi

T/R:     DEFENDANTS’ DEMURRERS ARE OVERRULED.

DEFENDANTS’ MOTIONS TO STRIKE ARE DENIED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, oppositions, and replies.

BACKGROUND

            On October 4, 2022 Plaintiff Aryand Arshadi sued Defendants Alpha Construction Co., Inc., McCadden Plaza Tay Housing LP, and Los Angeles LGBT Center, asserting causes of action for (1) negligence; (2) premises liability; (3) negligent hiring, supervision, and training; and (4) negligence per se. Plaintiff alleges his vehicle collided with a large, blue, metal trash container in the roadway, causing personal injury. Plaintiff alleges Defendants are responsible for the container’s location.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Negligent Hiring, Supervision and Training

            Defendants McCadden Plaza Tay Housing LP and Los Angeles LGBT Center demur to the third cause of action for negligent hiring and supervision on the ground that Plaintiff has failed to allege sufficient facts.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) 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 the employee created a particular risk or hazard, and that harm from that risk or hazard occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.)

Plaintiff alleges Defendants McCadden and LGBT Center failed to supervise Alpha Construction. Plaintiff alleges Alpha Construction violated various ordinances by placing the dumpster on a road that was too narrow, by failing to place light reflective material on the dumpster, and by failing to obtain the necessary permits. Plaintiff alleges McCadden and LGBT Center knew or should have known that Alpha failed to obtain the required permits, and that this failure and resulting injury were foreseeable. This is sufficient to state a cause of action for negligent hiring and supervision.

McCadden and LGBT Center’s demurrer to the cause of action for negligent hiring and supervision is OVERRULED.

B. Negligence Per Se

            Defendants Alpha Construction, McCadden Plaza Tay Housing LP and Los Angeles LGBT demur to the causes of action for negligence per se on the ground that negligence per se is not a separate cause of action but rather an evidentiary doctrine in a negligence claim. (See Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549, 555 (citing Evid. Code § 669).) This is not grounds for demurrer. Plaintiff may plead alternative theories of negligence and liability. Titling these theories as “causes of action” does not have any material consequence.

            Defendants’ demurrer to the causes of action for negligence per se is OVERRULED.

C. Motions to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.)

Defendants move to strike paragraph five of Plaintiff’s prayer for damages, which seeks, "interest, costs and other damages allowed by the law including, but not limited to Civil Code §§ 3287, 3288 and 3291, as well as C.C.P. §§ 1032 and 1033.5, according to proof." Defendants assert that Plaintiff has failed to allege bases for prejudgment interest and attorney’s fees. In opposition, Plaintiff asserts that she may be entitled to interest and expert costs under CCP § 998.

The Court declines to strike Plaintiff’s prayer. Plaintiff is entitled to attorney’s fees, costs, and interest if allowable by the law. It is immaterial whether entitlement is pleaded in the complaint.

Defendants’ motion to strike is DENIED.