Judge: Michael E. Whitaker, Case: 21STCV43732, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV43732    Hearing Date: September 15, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

Plaintiff Ryan Cain Newell sued defendant The Vons Companies, Inc. (“Vons”) based on injuries Plaintiff alleges he sustained when he was accosted and stabbed by defendant John Doe (“Doe”), who was a security guard on premises controlled by Vons.  Vons moves for judgment on the pleadings on Plaintiff’s fifth cause of action for negligent hiring, supervision, and retention.  Vons also moves to strike the fifth cause of action from Plaintiff’s complaint.  Plaintiff opposes both motions.

ANALYSIS

1. MOTION FOR JUDGMENT ON THE PLEADINGS

    

   A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

    

   “Determining whether a pleading alleges facts sufficient to state a cause of action is a question of law.  . . .  Ordinarily, a pleading is sufficient if it alleges ultimate rather than evidentiary facts constituting the cause of action.  It has been consistently held that a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”  (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1019–1020 [cleaned up].)

    

   However, distinguishing “ultimate facts” from “evidentiary facts” and “legal conclusions” can be difficult.  Generally, court and litigants are guided in making these distinctions by the principle that a plaintiff is required only to set forth the essential facts with particularity sufficient to acquaint a defendant with the nature, source and extent of [the plaintiff's] cause of action.  Under this doctrine of less particularity, less specificity is required in pleading matters of which the defendant has superior knowledge.  For policy reasons, some causes of action, such as fraud and negligent misrepresentation, must be pleaded with particularity—that is, the pleading must set forth how, when, where, to whom, and by what means the representations were made.”  (Foster v. Sexton, supra, 61 Cal.App.5th at pp. 1027–1028 [cleaned up].)

    

   Here, Vons argues that Plaintiff’s allegations in the fifth cause of action are conclusory, lacking facts sufficient to constitute a cause of action.  Specifically, Vons asserts that Plaintiff fails to allege ultimate facts to establish Vons hired Doe and should have known Doe was incompetent or unfit.  In opposition, Plaintiff argues the fifth cause of action is adequately pled. 

    

   To prevail on a claim for negligent hiring, supervision, and retention, plaintiff must prove “the employer's negligence in hiring or retaining an employee who is incompetent or unfit.” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564.)  “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054,  citations omitted.)  In Doe, the Court of Appeal explained that “the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way.” (Ibid.) Thus, the Doe court held a plaintiff fails to state a cause of action for negligent hiring, supervising, or retaining an unfit employee where a complaint “fail[s] to allege those necessary facts.” (Id. at p. 1055.)

    

   In sum, as set forth in the California Civil Jury Instructions (CACI) 426, a plaintiff must establish the following:

    

   [Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by [name of employee] and that [name of employer defendant] is responsible for that harm because [name of employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. To establish this claim, [name of plaintiff] must prove all of the following:

   1. [That [name of employer defendant] hired [name of employee];]

   2. That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she/nonbinary pronoun] was hired/[specify other particular risk]];

   3. That [name of employer defendant] knew or should have known that [name of employee] [[was/became] [unfit/ [or] incompetent]/[other particular risk]] and that this [unfitness [or] incompetence/ [other particular risk]] created a particular risk to others;

   4. That [name of employee]’s [unfitness [or] incompetence/ [other particular risk]] harmed [name of plaintiff]; and

   5. That [name of employer defendant]'s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]’s harm.

    

               Here, Plaintiff’s fifth cause of action alleges, in relevant part,

    

   “Defendants ALBERTSONS COMPANIES, INC., a Delaware corporation; THE VONS COMPANIES, INC., a Michigan corporation; and DOES 1 TO 100, inclusive, knew or should have known that Defendant JOHN DOE was incompetent and unfit and that his incompetence and unfitness created a particular risk to others, including Plaintiff.

    

   Defendant JOHN DOE'S incompetence and unfitness harmed Plaintiff.

    

   As a result of the conduct of Defendants, and each of them, the Plaintiff was physically and psychologically damaged, incurred medical bills, sustained disability and had to retain an attorney and has incurred legal costs in connection therewith in order to prosecute this action.

    

   Defendants ALBERTSONS COMPANIES, INC., a Delaware corporation; THE VONS COMPANIES, INC., a Michigan corporation; and DOES 1 TO 100, inclusive, negligence in hiring, supervising and/or retaining Defendant JOHN DOE was a substantial factor in causing Plaintiffs harm.”

    

   (Complaint, ¶¶ 41-44.)  And although Plaintiff does not specifically allege in the fifth cause of action that Vons hired Doe, Plaintiff does allege elsewhere in the complaint that Doe was a “direct employee” of Vons.  (See Complaint, ¶ 4.)  Moreover, Plaintiff alleges that Doe was acting within the course and scope of “his employment as a security officer engaged by Defendants,” which includes Vons.  (See Complaint, ¶¶ 13, 21.)

    

               For pleading purposes, the Court finds Plaintiff’s allegations are sufficient to assert a cognizable cause of action for negligent hiring, supervision or retention of an employee.  In particular, the Court finds that Plaintiff has pled the necessary ultimate facts for such claim at the pleading stage.  Accordingly, the Court will deny Von’s motion for judgment on the pleadings.

    

2. MOTION TO STRIKE

    

   Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

    

   Here, Vons moves to strike the fifth cause of action from Plaintiff’s complaint on the same grounds as those advanced in its motion for judgment on the pleadings – i.e., for failure to allege facts sufficient to constitute a cause of action.  But for the same reasons set forth above, the Court will deny Von’s motion to strike.

    

   CONCLUSION

    

               Therefore, the Court denies Vons’ motion for judgment on the pleadings on Plaintiff’s fifth cause of action and denies Vons’ motion to strike Plaintiff’s fifth cause of action. 

    

               The Clerk of the Court shall provide notice of the Court’s ruling.