Judge: Michael E. Whitaker, Case: 22STCV20105, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV20105    Hearing Date: October 25, 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 Robert Rios (“Plaintiff”) sued defendants Tarzana Treatment Centers, Inc. (“Defendant”) for negligence, negligent hiring and/or supervising, and premises liability.  The Complaint alleges that Thomas, an alleged employee at the facility, approached Plaintiff, initiated a squabble, and demanded that Plaintiff go inside the facility.  When Plaintiff did not immediately comply, Thomas stabbed Plaintiff in his left ear with a sharp object.  Defendant demurs to the entire Complaint and moves to strike the claim for exemplary and punitive damages.  

            Defendant filed notices of non-opposition indicating the deadline for oppositions had passed and no party opposed the demurrer and motion to strike.  But Plaintiff filed oppositions to the demurrer and motion to strike, albeit late.  In the September 27, 2022, minute order, the Court continued the hearing on the demurrer and motion to strike to October 25, 2022, and ordered that the Defendant file and serve supplemental replies to Plaintiff’s oppositions on or before October 11, 2022 because Defendant claimed that it did not have ample time to address the oppositions on the merits.

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.) 

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

1. FIRST CAUSE OF ACTION

    

   “ ‘Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.’ [Citation.]”  (Purton v. Marriott Int’l, Inc., (2013) 218 Cal.App.4th 499, 504.)  “The term ‘scope of employment’ has been interpreted broadly. [Citation.] ‘[T]he employer’s liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.’ [Citation.] ‘[T]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.’ [Citation.] Thus, an employer’s vicarious liability may extend to the employee’s negligence, willful and malicious torts, or acts that contravene an express company rule and confer no benefit to the employer.”  (Id. at p. 505.)

    

   Defendant claims that Plaintiff’s negligence and negligent hiring and/or supervision claims are uncertain, ambiguous, unintelligible, and fail to state facts sufficient to constitute causes of action because the Complaint does not allege specific facts to support vicarious liability under respondeat superior.  (Demurrer, pp. 5-6.)  Defendant claims the Complaint makes a conclusory allegation that “Thomas did the above said under the scope of his employment with Defendant.”  (Complaint, ¶ 13.).  Defendant also claims that the Complaint is devoid of any allegations showing that Thomas’ acts were engendered by his employment such that it was in the course and scope of employment when Thomas intentionally assaulted Plaintiff.  (Demurrer, p. 7.).  Defendant argues Plaintiff fails to allege any facts that would support Defendant was negligent in hiring Thomas who was unfit at or before the time he was hired, or that he was retained after Defendant had reason to believe an undue risk of harm to others would exist if Thomas remained in his employment.  (Demurrer, pp. 7-8.).  Defendant points out that the Complaint does not identify any facts regarding the manner in which Thomas was negligently hired, supervised, or trained.  (Demurrer, p. 8.)  Finally, Defendant claims there are no facts to show Defendant ratified Thomas’ actions.  (Mot. pp. 8-9.) 

    

   In Opposition, Plaintiff claims that the Complaint does allege sufficient facts to show Defendant is liable under respondeat superior because the Complaint states that Thomas was performing a duty of monitoring and patrolling the Defendant’s premises that he was ordered and empowered to perform when he maliciously assaulted and caused irreparable injury to Plaintiff.  (Opposition, p. 6.)  For the negligent hiring and/or supervision claim, Plaintiff argues that Defendant owes residents under its supervision a protective duty of ordinary care, for breach of which it may be held vicariously liable.  (Opposition, p. 6.) 

    

   In Reply, Defendant cites two cases in which the Court found respondeat superior.  Defendant distinguishes those cases with the case at hand because the employees were engaging in conduct that was broadly incidental to the enterprise undertaken by their employer, but here, Defendant claims Thomas’ conduct substantially deviated from the employment duties of a Tarzana Treatment Centers employee since the tort was personal in nature.  (Reply, pp. 2-3.)  Defendant reiterates that there are no facts in the Complaint which demonstrate that Thomas should not have been hired and no facts to show that the act of hiring, retention, supervision, or training of Thomas was a substantial factor in causing Plaintiff’s alleged injuries.  (Reply, p. 3.)  The Court finds disagrees.

    

   Here, Plaintiff alleges in pertinent part the following:

    

• On or around June 23, 2020 at approximately 4:50 AM, Plaintiff who was staying at the Property walked to the facility courtyard smoke area to smoke a cigarette. Thomas, an employee at the facility, approached Rios and initiated a squabble and demanded that RIOS go inside the building. When RIOS did not immediately comply, Thomas stabbed RIOS in his left ear with a sharp object. As a direct and proximate result of such a strike, RIOS suffered 2-3 puncture wounds to his left ear, a ruptured left ear drum, and permanent partial hearing loss in his left ear.

   

• On information and belief, Defendant Thomas did the above said under the scope of his employment with Defendant Tarzana Treatment Center.

• Defendants, and each of them, failed to listen, train, manage, and/or prevent and eradicate the dangerous and reckless employee on their property.

• Defendants failed to conduct adequate background checks and/or training to avoid hiring unfit employees such as Thomas who have dangerous tendencies or are otherwise unfit to work in a treatment facility.

• Defendants were responsible for training, managing, supervising, and overseeing their employees including Defendant Thomas.

• Upon information and belief, Defendant Thomas’ actions were in furtherance of and within the scope of his employment with the other Defendants. Accordingly, the other Defendants are jointly and severally liable for their employee’s actions.

• Defendants, and each of them, breached the duty of care by failing to effectively, train, handle, supervise, and/or manage their employee and/or to conduct adequate background and personality checks to ensure that a dangerous individual like Thomas would not be working at the Property.

   

  (Complaint, ¶¶ 12-16, 19-20.) 

   

For pleading purposes, the Court finds Plaintiff’s complaint alleges sufficient ultimate facts to constitute a negligence cause of action.  Ultimate facts are those “constituting the cause of action” or those upon which liability depends. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form a part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 [at pleading stage, plaintiff need not specify which of defendant’s employees committed negligent acts or omissions].)  The Court therefore overrules the demurrer to the first cause of action for negligence.

1. SECOND CAUSE OF ACTION

    

   “ ‘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. [Citation.] 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.’ [Citation.]”  (McKenna v. Beesley, (2021) 67 Cal.App.5th 552, 566-567; see also Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564 [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”].) 

    

   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.

            Apart from the allegations set forth in paragraphs 12 through 16 of the complaint, Plaintiff alleges pertaining to the second cause of action the following:

• Plaintiff Rios was harmed by Defendants’ employee while acting in the course and scope of his employment. Accordingly, employers are responsible for the harm because employers negligently hired, supervised, and/or managed their employee.

   

• On information and belief, employers failed to check whether their employee was mentally fit for monitoring and patrolling the Treatment Center without harming patrons. 

   

• On information and belief, employers failed to conduct a background check on their employee prior to allowing him to work on this Property.

   

• On information and belief, employers failed to check whether their employee had the correct licensing and/or training to be an employee.

   

• On information and belief, employers failed to properly train their employee on what to do in certain situations.

   

• The employee on Defendants Property demonstrated the inability to professionally conduct himself on the night on June 23, 2020 and therefore reacted in such disdain for the safety of Plaintiff Rios. Employers’ lack of training, managing, and supervising resulted in their employee severely injuring Plaintiff Rios.

   

• Upon information and belief, the employee’s actions were in furtherance of and within the scope of employment with the other Defendants. Accordingly, the other Defendants are jointly and severally liable for the employee’s actions.

   

• Defendants, and each of them, knew or should have known, that employee’s require specialized training to effectively handle certain situations and patrons. Defendants, and each of them, failed to provide the necessary training, supervision, or management to ensure their employee was ready to do their job.

(Complaint, ¶¶ 24-31.)  Nonetheless, Plaintiff fails to allege that Defendant knew or should have known that Thomas was unfit and his unfitness created a particular risk to others including Plaintiff.  Thus, Plaintiff fails to state a cause of action for negligent hiring or supervision. 

1. THIRD CAUSE OF ACTION

    

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril.  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].)  Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)

Defendant claims that the Complaint does not articulate what condition of the premises was dangerous.  (Mot. p. 9.)  

In Opposition, Plaintiff claims that he sufficiently pled that Defendant, owned controlled, and maintained the premises and location where the incident occurred, and that Defendants were negligent in the use of maintenance of the property which allowed Plaintiff to be assaulted and sustain permanent injuries.  (Oppo. p. 7.)

In Reply, Defendant argues that the Complaint’s premises liability cause of action is based on the mere fact that Thomas assaulted Plaintiff on Defendant’s property, which is insufficient to show that Defendant was in any way negligent in the use and maintenance of the property.  (Reply p. 4.) 

Here, Plaintiff’s assertion that “Defendants actions in failing to supervise or train their dangerous employees and/or other persons on their property was substantial factor in causing Plaintiff harm” is insufficient to state a premises liability claim under the circumstances.  Similar to the second cause of action, Plaintiff does not allege that Defendant knew or should have known that Thomas was unfit and his unfitness created a particular risk to others including Plaintiff, and more important, Plaintiff does not allege what steps Defendant could or should have taken to prevent the particular risk to others including Plaintiff. 

1. 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.)

    

1. Punitive Damages

    

   In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

    

   (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

    

   (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

    

   Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

    

   Finally, “the imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

Here, Plaintiff has not pled sufficient facts to support a claim of punitive damages under Civil Code section 3294.  In particular, Plaintiff fails to assert allegations of malice, oppression or fraud on the part of Defendant’s corporate leaders: officers, directors or managing agents.  The alleged conduct of Thomas, the employee, cannot be ascribed to Defendant for purposes of sustaining a claim for punitive or exemplary damages. 

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to the First Cause of Action and sustains  Defendant’s demurrer as to the Second and Third Causes of Action with leave to amend.  Further, the Court grants Defendant’s motion to strike portions of Plaintiff’s complaint with leave to amend.

The Court orders Plaintiff to file and serve an amended complaint in accordance with the Court’s rulings within 20 days of notice of the Court’s rulings.  Defendant shall provide notice of the Court’s rulings and file a proof of service of such.