Judge: Michael E. Whitaker, Case: 22STCV11753, Date: 2022-08-19 Tentative Ruling

Case Number: 22STCV11753    Hearing Date: August 19, 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

MOTION

Plaintiffs Jesus Mejia (“Mejia”), individually, and Estate of Theresa Martinez, by Jesus Mejia as successor in interest (collectively, “Plaintiffs”) sued defendants City of Los Angeles (“City”), Ralph Terrazas (“Terrazas”), Phillip T. Fligial (“Fligial”), Sergio Saenz (“Saenz”), and Konrad Krzywicki (“Krzywicki”)  based on the death of Theresa Martinez (“Decedent”).  Plaintiffs allege Defendants failed to render meaningful aid or to transport Decedent to the hospital, leading to her death.  Defendants demur to Plaintiffs’ entire complaint, as well as the second, fourth, and sixth causes of action in the complaint.  Defendants also move to strike Plaintiffs’ prayer for attorney’s fees and treble damages in the complaint.  Plaintiffs oppose the motion and demurrer.

ANALYSIS

1. DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

1. Second Cause of Action: Negligent Infliction of Emotional Distress (“NIED”)

    

   Defendants argue the second cause of action for NIED fails to allege facts sufficient to constitute a cause of action against City as a public entity and is duplicative of the first cause of action for negligence.  In opposition, Plaintiffs contend the second cause of action sufficiently alleges a statutory basis for City’s vicarious liability under Government Code section 815.2, subdivision (a), and is not duplicative because it pleads a bystander theory of NIED on behalf of Mejia which is distinct from the first cause of action for negligence.

    

   “NIED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages. “The distinction between the “bystander” and the “direct victim” cases is found in the source of the duty owed by the defendant to the plaintiff. “Bystander” claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a ‘direct victim’ arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff.” (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [cleaned up].) “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

    

   Government Code section 815 provides that “[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” except as provided by statute.  (Gov. Code, § 815, subdivision (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[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.)  To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) 

    

   Government Code section 815.2, subdivision (a), provides: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) 

    

   Plaintiffs’ complaint alleges, in relevant part:

    

   “Defendants SAENZ and KRZYWICKI discharged their duties in a grossly negligent manner and/or not in good faith, as they abandoned plaintiff's wife in her time of need by failing to treat and/or transport her to the hospital the first time plaintiff called 911.

    

   Plaintiff, JESUS MEJIA, was present at the scene with his ailing wife, the decedent Theresa Martinez. Plaintiff begged SAENZ and KRZYWICKI to provide medical aid and/or transport his wife to the hospital the first time he called 911, but defendants refused to do so. Plaintiff was aware his wife was being injured by defendants' refusal to provide medical aid and/or transport her to the hospital. Defendants’ actions and inaction were outrageous behavior meaning that the conduct was so extreme as to go beyond all possible bounds of decency and uncivilized. By their actions and inaction, defendants abused their position of authority, used the victim’s vulnerability to emotional distress, and/or acted with knowledge that the conduct would likely cause emotional distress

    

   As a result of being present at the scene and perceiving his wife being injured by SAENZ's and KRZYWICKI's failure to render medical aid and/or transport his wife to the hospital, plaintiff suffered serious emotional distress, including but not limited to, anguish, fright, horror, nervousness, grief, anxiety, worry shock, humiliation, and shame.

    

   …

    

   Defendant CITY OF LOS ANGELES is subject to liability pursuant to Gov't. Code 815.2(a) which provides that a public entity is liable for the injuries caused by its employees within the scope of the employment if the employee's act would subject him/her to liability. Defendants SAENZ, KRZYWICKI, and DOES 1 through 10 are employees and were acting within the course and scope of their employment with CITY OF LOS ANGELES and are subject to liability pursuant to Gov't. Code §820(a).”

    

   (Complaint, ¶¶ 27-29, 31.)

    

               For pleading purposes, Plaintiffs’ allegations are sufficient to establish a bystander NIED claim on the part of Mejia as well as a statutory basis for City’s vicarious liability.  Accordingly, the Court overrules the demurrer to the second cause of action.

    

2. Fourth Cause of Action: “Negligent Hiring, Training, Supervision”

    

   Defendants next argue the fourth cause of action for “Negligent Hiring, Training, Supervision” fails as a matter of law because there is no statutory basis to impose either direct or vicarious liability on City for negligent hiring, training, or supervision of employees.  Defendants also assert that negligent hiring, training, and supervisions is not a valid cause of action against a governmental entity.  Finally, Defendants argue that Terrazas and Fligial are immune from liability per Government Code sections 820.2 and 820.8.  In opposition, Plaintiffs contend that the complaint sufficiently pleads City’s vicarious liability under Government Code section 815.2, subdivision (a), and that the Court cannot make a determination of immunity for Terrazas and Fligial at the demurrer stage.

    

   In C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, our Supreme Court held that a theory of vicarious liability for negligent hiring, retention, and supervision against a school district under section 815.2 for negligently exposing a plaintiff to a foreseeable danger of molestation by a school employee is legally viable. (Id. at 865.) The C.A. v. William S. Hart Union High School District court reasoned that a special relationship between “school personnel and students under their supervision a protective duty of ordinary care, for breach of which the school may be held vicariously liable.” (Ibid.) Thus, the key to a public entity’s vicariously liability for negligent hiring, supervision, and retention of an employee under section 815.2 is the existence of a special relationship giving rise to a particular duty. Consequently, absent “a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” (Id. at p. 875.)

    

   Government Code section 820.2 provides, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”  Per Government Code section 820.8, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person.  Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.”

    

   Plaintiffs’ fourth cause of action alleges, in relevant part:

    

   “SAENZ and KRZYWICKI were hired, trained, and supervised by TERRAZAS, FLIGIAL and DOES 11 through 20.

    

   At all times alleged herein, SAENZ and KRZYWICKI were acting within the course and scope of their employment with CITY OF LOS ANGELES.

    

   Plaintiff is informed and believes SAENZ and KRZYWICKI were, or became, unfit or incompetent to perform the work for which they were hired; lacked the necessary experience to assess the need for medical attention required by the decedent Theresa Martinez, and lacked training regarding same.

    

   TERRAZAS and FLIGIAL knew or should have known that SAENZ and KRZYWICKI were unfit or became unfit to perform the work for which they were hired; lacked the necessary experience to assess the need for medical attention required by the decedent Theresa Martinez, lacked training regarding same; and that these faults created a particular risk to others.

    

   …

    

   Defendant CITY OF LOS ANGELES is subject to liability pursuant to Gov't. Code §815.2(a) which provides that a public entity is liable for the injuries caused by its employees within the scope of the employment if the employee's act would subject him/her to liability. Defendants TERRAZAS, FLIGIAL, and DOES 11 through 20 are employees and were acting within the course and scope of their employment with CITY OF LOS ANGELES and are subject to liability pursuant to Gov't. Code §820(a).”

    

   (Complaint, ¶¶ 40-43, 45.)

    

   For pleading purposes, the Court finds that Plaintiffs fail to allege a special relationship between Defendants and Plaintiffs to establish individual liability of Terrazas and Fligial to Plaintiffs for negligent hiring, retention or supervision of Saenz and Krzywicki, and hence no vicarious liability of City under section 815.2.  Further, to the extent Plaintiffs allege Terrazas’ and Fligial’s acts of hiring, training, and supervising Saenz and Krzywicki were discretionary, both would then be immune for such conduct under Government Code section 820.2.  The Court therefore sustains the demurrer to the fourth cause of action.

    

3. Sixth Cause of Action: “Violation of Bane Act - Civil Code § 52.1”

    

Defendants demur to the sixth cause of action for violation of the Bane Act – Civil Code section 52.1 for failure to state facts sufficient to constitute a cause of action. Specifically, Defendants contend that the complaint fails to: (1) allege any conduct on the part of Terrazas and Fligial; (2) fails to allege that Saenz and Krzywicki used threats, intimidation, or coercion against Decedent; and (3) fails to allege that any defendant injured Decedent for the specific purpose of preventing her from exercising her constitutional rights or for the purpose of infringing on those rights.  In opposition, Plaintiffs agree to dismiss the sixth cause of action against Terrazas and Fligial, but argue that paragraph 51 sufficiently alleges threats, intimidation, or coercion by Saenz and Krzywicki and an interference, or attempt to interfere, with Decedent’s civil or statutory rights.

Enforcement of the Bane Act is brought under Civil Code section 52.1. (See Civ. Code, § 52.1, subds. (b), (c).) The elements for a cause of action under Civil Code section 52.1 are: (1) That the defendant interfered with or attempted to interfere with the plaintiff’s constitutional or statutory right by threatening or committing violent acts; (2) That the plaintiff reasonably believed that if he exercised his constitutional right the defendant would commit violence against him or his property or that the defendant injured the plaintiff or his property to prevent him from exercising his constitutional right or retaliate against the plaintiff for having exercised his constitutional right; (3) That the plaintiff was harmed; (4) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 882.)

            Paragraph 51 alleges,

“SAENZ and KRZYWICKI while working as EMTs (paramedics) for the CITY OF LOS ANGELES, and acting within the course and scope of their employment, interfered with or attempted to interfere with Martinez and MEJIA’ protected rights under California and U.S. Constitutions against discriminatory treatment based on race, physical appearance, and right not to be denied medical care by threats, intimidation or coercion. The Defendants intended to coerce MEJIA and Decedent from exercising their rights by asking intimidating questions about Decedent and about her tattoos and by demanding papers from MEJIA. By their actions and inaction, defendants intended to interfere with or deprive Martinez and MEJIA of their constitutionally protected rights.”

(Complaint, ¶ 51.) 

            For pleading purposes, the Court finds Plaintiffs fail to allege that Saenz and Krzywicki interfered with or attempted to interfere with the Plaintiffs’ constitutional or statutory rights by threatening or committing violent acts.  Plaintiffs also fail to allege that they reasonably believed that if they exercised their constitutional right,  Saenz and Krzywicki would commit violence against Plaintiffs or their property; or that Saenz and Krzywicki injured Plaintiffs or their property to prevent them from exercising their constitutional rights or retaliate against Plaintiffs for having exercised their constitutional right.  The Court therefore sustains the demurrer to the sixth cause of action. 

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, Defendants move to strike Plaintiffs’ prayer for attorney’s fees and treble damages sought under the Bane Act.  For the same reasons set forth above, Defendants argue Plaintiffs’ sixth cause of action for violation of the Bane Act fails and, consequently, Plaintiffs’ prayer for damages pursuant to the Bane Act must be stricken.  Because the Court sustains the demurrer to the sixth cause of action for failure allege facts sufficient to constitute a cause of action for violation of the Bane Act, the Court denies the motion to strike as moot.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendants’ demurrer to the fourth and sixth causes of action in the complaint for failure to allege facts sufficient to constitute a cause of action, with leave to amend, and overrules the demurrer to the second cause of action.  The Court denies Defendants’ motion to strike as moot.  Finally, the Court orders Plaintiffs to file and serve an amended complaint in accordance with this ruling within 20 days of notice of the Court’s orders.  

Defendants shall provide notice of the Court’s orders and file a proof of service of such.