SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On June 9, 2023, Plaintiff Meille Gerard (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) against defendants Birkenstock USA, LP (“Birkenstock”), Sandalim, Inc. (“Sandalim”), and Does 1 through 50 (collectively, “Defendants”) for injuries arising from stacked boxes on movable racks, which fell on top of Plaintiff’s head. The complaint alleges causes of action for (1) negligence, (2) negligence – vicarious liability, (3) negligent hiring, supervision, and retention, and (4) premises liability. 

Defendant Birkenstock now demurs to the FAC, arguing each cause of action fails to state sufficient facts to constitute a claim against Birkenstock as a distributor/supplier/franchisor to Sandalim.  Plaintiff opposes the demurrer, and Birkenstock filed a reply.   

 

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

 

A. Meet and Confer  

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)   

The Court finds Birkenstock fulfilled this requirement prior to filing the demurrer.  (Demurrer Gibbons Decl. ¶¶ 8-9.) 

 

B. Analysis re: 1st C/A Negligence, and 4th C/A Premises Liability  

The elements of premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)    

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)  However, while negligence may be alleged in general terms, there are “limits to the generality with which a plaintiff is permitted to state his cause of action.”  (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)   

Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  Consequently, the “duty to exercise reasonable care can be inferred from the assertion of the fact that defendant owned and managed the property.”  (See Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [allegation of defendant's negligent management and maintenance of property].)   

 

Here, the FAC alleges in relevant part: 

 

3. Birkenstock USA is the manufacturer, distributor, and or franchisor of Birkenstock 

footwear in the United States. 

 

5. Defendant Sandalim negligently owned and operated an authorized Birkenstock retail store located at 8606 W 3rd St. Los Angeles, CA 90048 (hereinafter referred to as "Subject Location" or "Birkenstock of West Hollywood") 

 

9. Birkenstock USA, LP is a distributor, supplier, and or franchisor of defendant Sandalim's "Birkenstock of West Hollywood" retail location. 

 

14. Defendants Bekey Chu LLC, Richard Y Bekey, Kim Franzini, and A Lin Bekey are listed as the real property owners of the lot located at 8600 W. 3rd Street, Los Angeles, CA 90048 of which encompasses the subject location where the Plaintiff's injury occurred. 

 

15. Plaintiff was an independent contractor of the defendant Sandalim. 

 

16. Plaintiff was injured on February 14, 2022, when boxes fell on top of Plaintiff s head in Birkenstock of West Hollywood's stockroom, resulting in serious injuries to Plaintiff, as further 

described below. 

 

18. […] Plaintiff was hired, paid and classified by defendant Sandalim as an independent contractor. 

 

19. Plaintiff is informed, believes, and thereon alleges that at the time and place of the incident hereinafter alleged, defendant Sandalim was at all times herein mentioned, the owner, and operator ofthe subject location. 

 

21. Plaintiff is informed, believes, and thereon alleges that at the time and place of the 

incident hereinafter alleged, defendant Birkenstock USA, LP was at all times herein mentioned, the distributor, supplier and or franchisor of defendant Sandalim. 

 

24. At all times herein mentioned, defendant and DOES 1 THROUGH 50, inclusive, (hereinafter "defendants") were the agents and/or employees of each of the remaining defendants, and in such capacity were responsible for Plaintiff’s damages. 

 

(FAC. at ¶¶ 3, 5, 9, 14-16, 18-19, 21, 24.)  Additionally, the FAC alleges that Defendants hired managers', employees, or agents, who managed and maintained the Birkenstock store, that Defendants owed Plaintiff a duty to maintain the property in safe condition, that Defendants each knew or should have known the stockroom was not maintained in a safe condition and that the shelves and rolling racks on wheels presented an unsafe and dangerous condition, and that Plaintiff suffered injury as a result of a failure to provide a safe working environment.  (Id. at ¶¶ 33-38.)   

Accordingly, the FAC alleges that Sandalim owned and operated the subject premises, but that defendants were the agents and/or employees of each remaining defendant and as such, defendants failed to exercise due diligence in inspecting and maintaining the property for the danger of shelves and rolling racks on wheels. Defendants’ duty to exercise reasonable care is inferred from the allegations that Defendants owned, managed, and controlled the subject property, and the complaint sufficiently alleges that Defendants breached this duty to Plaintiff.  (See Pultz, 184 Cal.App.3d at 1117.)  Even though it is not specifically alleged that Birkenstock owned, managed, and controlled the subject property, for the purposes of a pleading, it is sufficient that Plaintiff alleged each defendant were the agents and/or employees of each other to form a causal relationship. Whether this is true or not is immaterial for the purposes of a demurrer. (See Id. [“The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.”]; see also Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.)   

As to Birkenstock’s contention that the FAC is vague and uncertain, uncertainty is a disfavored basis for demurrer and only applies when the demurrer is sufficiently unintelligible that a responding party would have no idea how to direct their litigation efforts.  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Ludgate Insurance Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  Any ambiguity about the scope of Birkenstock’s liability to Plaintiff and the control Birkenstock may or may not have as the distributor, supplier, and franchisor of Sandalim can be clarified through discovery. The FAC’s allegations sufficiently allege duty, breach, causation and damages against Defendants, including Birkenstock based on an alleged agency or employment relationship.    

Accordingly, Birkenstock’s demurrer to first and fourth causes of action are OVERRULED. 

 

B. Analysis re: 2nd C/A Negligence – Vicarious Liability and 3rd C/A Negligent Hiring, Training, and Supervision  

“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment. This doctrine is based on “ ‘a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.” ’ ” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.) “An agent or employee is always liable for his own torts, whether his employer is liable or not.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1411 [178 Cal.Rptr.3d 18].) “Agency is the relation that results from the act of one person, called the principal, who authorizes another, called the agent, to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal.” (L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 304.) 

Respondeat superior is a form of strict liability, in that the employer is responsible for the employee's wrongful acts (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal. 3d 956.) Plaintiff need only prove an employee caused the injury, not necessarily which employee was at fault. (Perez v. City of Huntington Park (1992) 7 Cal. App. 4th 817.) 

 

Here, concerning the second cause of action for vicarious liability, the FAC alleges in pertinent part: 

45. Defendants are vicariously liable for the negligent acts and omissions of its employees, agents, managers, and/or representatives committed within the scope of their employment or agency, under the legal theory of vicarious liability and respondent superior. 

 

46. Defendants employed managers and employees to maintain and manage the Birkenstock store. Such employees knew that such location was not up to code, and or unsafe to fulfill tasks for workers, business invitees, and or independent contractors, including but not limited to, tasks conducted in the premises of the stockroom. Nonetheless, the defendants, its managers, agents, employees and or representatives allowed Plaintiff to continue to enter the stockroom knowing such dangers and unsafe conditions existed on the property. 

 

48. The negligent acts and omissions of defendants agents, managers, employees and/or 

representatives as described in this complaint, were committed within the scope of their employment or agency with defendant, and defendant is therefore liable for their actions under the legal theory of vicarious liability and respondent superior. 

 

49. As a direct and proximate result of the failure by the defendants representatives to properly safeguard conditions by providing up to code, safe working conditions, and adequate warnings, the Plaintiff suffered significant personal injuries and damages, all in an amount to be proven at trial. 

 

(FAC ¶¶ 45-46, 48-49.) 

 

As to the third cause of action, the elements of a negligent hiring, training, supervision and retention cause of action are: (1) at the time of the hiring, the employee had certain characteristics that would make him unsuitable for the position, or lack certain requisite skills; (2) at the time of the hiring, the employer must have known of these characteristics or lack of skills; (3) said characteristics or lack of skills caused the plaintiff's injury.  (CACI No. 426.) 

An employer may be liable to a third party for negligently hiring or retaining an unfit employee.  (J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal. App. 5th 1142, 1163.)  “There are ‘two elements necessary for a duty to arise in negligent hiring and negligent retention cases—the existence of an employment relationship and foreseeability of injury.’ [Citation.]“  (Dent v. National Football League (2018) 902 F.3d 1109, 1122 [applying California law].)  An employer’s duty “is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.”  (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214 [emphasis in original].)        

The principal may be negligent because he has reason to know that the ... agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.... [¶] [. . .] Liability results ... not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. ...’ [Citations.]¿¿ 

(Id. at 1213-14.)¿¿¿ 

“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.”  (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)    

Here, concerning the third cause of action for negligent hiring, retention, and training, the FAC alleges: 

 

50. Plaintiff alleges and incorporates by reference through fully set forth at length each and every allegation contained in the preceding paragraphs of this complaint. 

 

51. Defendants had a duty to exercise reasonable care in the hiring, supervision, and retention of its employees, agents, managers, and/or representatives to prevent harm to third parties, including Plaintiff. 

 

52. Defendants breached this duty by negligently hiring, supervising, and retaining employees who failed to properly store and secure boxes in the stockroom, and provide adequate warnings, resulting in Plaintiffs injuries. 

 

53. Defendant's negligent hiring, supervision, and retention of its employees was a substantial factor in causing Plaintiffs injuries and damages. 

(FAC ¶¶ 50-53.)    

The FAC does not contain any allegations concerning any conduct of any particular employee or agent of Defendants to sufficiently plead vicarious liability under the doctrine of respondeat superior, nor does the FAC plead any facts to show Defendants knew or should have known of the unfitness of any particular employee. Consequently, the second and third causes of action fails to state a claim for vicarious liability and negligent training, supervision, or retaining.    

Based on the foregoing, Birkenstock’s demurrer to the second and third causes of action are SUSTAINED. 

 

C. Leave to Amend¿¿ 

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  In this case, Plaintiff requests leave to amend the FAC. The Court finds there is a reasonable possibility the FAC can be cured. Therefore, Birkenstock’s demurrer is sustained in part as to the second and third causes of action with twenty (20) days for leave to amend.