Judge: Nathan Vu, Case: 2021-01236713, Date: 2022-09-12 Tentative Ruling

Demurrer

The demurrer of Defendant HP Communications, Inc. to the First Amended Complaint is OVERRULED in its entirety.

Defendant HP Communications, Inc. (HP) demurs to the First Amended Complaint (FAC) and all five causes of action stated therein.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.) Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)

First Cause of Action (Negligence)

Under the doctrine of “respondeat superior,” an employer may be liable for an employee’s tortious acts committed within the scope of the employment, if the plaintiff establishes: (1) an employment relationship, and (2) the tortious act occurred within the scope of that employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.)

Defendant HP argues that Plaintiff Sarah Huber failed to allege sufficient facts to make out the second element. An employee’s wrongful acts are committed within the scope of employment if (1) the acts were required by the employer or “incidental” to the employee's duties or (2) the acts were reasonably foreseeable by the employer. (Crouch v. Trinity Christian Ctr. of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.) 

Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499, is similar to our case and controls here. In that case, an employee consumed alcoholic beverages at an employer-hosted party and became intoxicated. (Id. at p. 502.) The employee was able to get home safely, but then left to drive a co-worker home. (Ibid.) While driving the co-worker, the employee struck another car, killing its drive. (Ibid.)

The Court held that “an employer may be found liable for its employee’s torts as long as the proximate cause of the injury (here, alcohol consumption) occurred within the scope of employment. (Id. at p. 503; see also id. at p.508 [“[E]xisting California case law clearly establishes that an employer may be found liable for its employee’s torts as long as the proximate cause of the injury occurred within the scope of employment.”) 

The Purton Court went on to explain that “’[u]nder the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.’ . . . Under the respondeat superior doctrine, the term ‘scope of employment’ has been interpreted broadly.” (Id. at pp. 504–505, quoting Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) 

In Purton, the Court of Appeal noted that it was sufficient that the employer had provided alcohol and permitted the consumption of alcohol brought by others. (Purton v. Marriott International, Inc., supra, 218 Cal.App.4th at p. 509.) Further, there was evidence to show that the party and drinking of alcoholic beverages provided a conceivable benefit to the employer and were customary incidents to the employment relationship. (Id. at pp. 509-510.)

In this case, Plaintiff Sarah Huber sufficiently alleged that Defendant Jerry Aguayo was within the course and scope of his employment with Defendant HP when he consumed excessive amounts of alcohol, when the term “scope of employment” is interpreted broadly. Defendant HP offered unlimited alcohol to its employees (including Defendant Aguayo) at the holiday party, and Defendant HP benefitted from the holiday party and hotel rooms provided to the employees. Plaintiff also alleged that drinking of alcohol, including the holiday party, was a customary incident to employment relationship.

The Purton Court also held that is irrelevant that “the foreseeable effects of the employee’s negligent conduct . . . occurred at a time the employee was no longer acting within the scope of his or her employment.” (Id. at p. 503.) “Foreseeability means that ‘in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.’” (Id. at p. 512.) The Court of Appeal noted that “alcohol abuse is foreseeable and extremely dangerous, and innocent people are injured or killed ‘as a consequence of the negligence of those who have consumed alcohol at events that otherwise benefit a commercial enterprise.’” (Id. at p. 511, quoting Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 810.)

Similarly, Plaintiff’s injuries were foreseeable, because Defendant Aguayo’s alleged conduct after he became intoxicated at the holiday party “is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.” (Purton v. Marriott International, Inc., supra, 218 Cal.App.4th at p. 509.)  at p. 508; see Childers v. Shasta Livestock Auction Yard, Inc., supra, 190 Cal.App.3d 792,p. 810 [“We think that if a commercial enterprise chooses to allow its employees to consume alcoholic beverages for the benefit of the enterprise, fairness requires that the enterprise should bear the burden of injuries proximately caused by the employees' consumption.”].) The first cause of action has been sufficiently pled.

Second Cause of Action (Negligent Hiring, Supervision and Retention)

‘”Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” 
(Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) 

“To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.)

Plaintiff alleged that Defendant Aguayo had a history of alcohol and substance abuse and that Defendant HP was aware of this history. Plaintiff also alleged that Defendant HP’s improper decision to retain Defendant Aguayo lead to Plaintiff’s injuries. Finally, as explained above, Plaintiff’s allegations are sufficient to support a connection between Plaintiff’s injuries occurred within the scope of Defendant Aguayo’s employment. Plaintiff has sufficiently pled this cause of action.

Third Cause of Action (Intentional Infliction of Emotional Distress), Fourth Cause of Action (Assault) and Fifth Cause of Action (Battery)

The California Supreme Court has held that an employer is liable for the intentional torts of its employees if the employee was acting within the scope of their employment. (See Field v. Sanders (1947) 29 Cal.2d 834.) When considering whether the act committed by the employee should be attributable to their employer, “the inquiry is not whether the act itself was authorized but whether it was committed in the course of a series of acts of the agent that were authorized by the principal.” (Id. at 839.) 

An employer also may be liable for an employee’s act where the employer authorized or subsequently ratified the tortious act and “the failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Ventura v. ABM Industries Inc. (2012) 212 Cal. App. 4th 258, 259.)

Here, Plaintiff plead that Defendant Aguayo’s tortious acts resulted from Defendant HP hosting the holiday party, serving unlimited alcohol, and providing Defendant Aguayo a hotel room. The FAC also alleges that even after Defendant HP learned that its employee had attacked Plaintiff, it failed to discharge Defendant Aguayo, thus ratifying the tortious act. Plaintiff alleges that Defendant Aguayo’s employment with Defendant HP continues to the present day, which further supports ratification. These causes of action have been adequately pled.

Motion to Strike

The motion to strike of Defendant HP Communications, Inc. to the First Amended Complaint is GRANTED, with twenty (21) days leave to amend.

Defendant HP moves to strike portions of the First Amended Complaint (FAC) relating to punitive damages and attorney’s fees.

Punitive Damages

In order to survive a motion to strike punitive damages, the plaintiff must plead ultimate facts to show the plaintiff entitled to such relief. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159.)

Pursuant to Civil Procedure Code section 3294(b), an employer may be liable for punitive damages based upon the acts of an employee if the employer: (1) “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others” or (2) “authorized or ratified the wrongful conduct for which the damages are awarded” or (3) “was personally guilty of oppression, fraud, or malice.” (Civil Code, § 3294, subd. (b).)

The allegations described above sufficiently plead the first and second requirements.

However, Section 3294(b) also requires that “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Ibid.) In this case, the FAC does not identify the officer, director, or management agent who engaged who had advance knowledge and acted with conscious disregard or who ratified Defendant Aguayo’s wrongful conduct.

Attorney Fees

 “[A] party is not entitled to attorneys’ fees except where authorized by statute or by contract.” (Anger v. Borden (1951) 38 Cal.2d 136, 145.) The FAC did not plead a basis in statute or contract for an award of attorney’s fees and plaintiff does not content that it does.

Defendant HP Communications, Inc. shall give notice of this ruling.