Judge: Robert S. Draper, Case: 21STCV39818, Date: 2022-09-02 Tentative Ruling

Case Number: 21STCV39818    Hearing Date: September 2, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendant Super Center Concepts, Inc.’s Demurrer to the First Cause of Action is SUSTAINED with leave to amend.

Defendant Super Center Concepts, Inc.’s Demurrer to the Second, Third, and Fourth Causes of Action is OVERRULED. Defendant has thirty days to file a responsive pleading.

Defendant Super Center Concepts, Inc.’s Motion to Strike is DENIED.

FACTUAL BACKGROUND   

Defendant Super Center Concepts, Inc. (“Super Center”) operates Superior Grocers. (FAC ¶ 2.) On November 1, 2019, Plaintiff La Tresea Chennette (“Plaintiff”) went grocery shopping at a Superior Grocers. (FAC ¶ 4.) She sought assistance from Defendant’s employee, who was wearing a name badge that indicated his name was Antonio. (FAC ¶ 4.) While assisting Plaintiff, Antonio began to make sexual advances to Plaintiff and then hugged her, which made Plaintiff uncomfortable. (FAC ¶ 6.)

Plaintiff paid for her items then exited the store. (FAC ¶ 8.) Antonio was waiting outside, and asked Plaintiff if she needed help to her car. (Ibid.) She declined and walked toward her car. (Ibid.)

Antonio followed Plaintiff to her car and told her that he was doing his job and was there to return her cart to the store. (FAC ¶ 9.) As Plaintiff attempted to get into her vehicle, Antonio grabbed Plaintiff from behind, forcibly turned her around, grabbed and groped her, and forcibly kissed her. (Ibid.) Antonio continued his physical advances despite Plaintiff repeatedly objecting. (Ibid.)

Plaintiff called Superior Groces the next day to report the incident and to ask for Antonio’s full name. (FAC ¶ 12.) A man who identified himself as the manager of Superior refused to provide Plaintiff with his name or assailant’s name, though he did confirm that an Antonio was working at the store on the night of the attack. (Ibid.) Plaintiff asked the manager for a copy of any video the store might have of the attack, but the manager refused. (Ibid.)  

PROCEDURAL HISTORY 

On October 28, 2021, Plaintiff filed the Complaint asserting six Causes of Action:

1.    Negligent Hiring, Supervision, and Retention;

2.    Sexual Assault;

3.    Sexual Harassment;

4.    Intentional Infliction of Emotional Distress;

5.    Negligent Infliction of Emotional Distress; and,

6.    Exemplary & Punitive Damages (Civil Code Section 3294.)

On December 2, 2021, Plaintiff served Defendant with the Summons and Complaint.

On December 29, 2021, Defendant filed a Demurrer to the Complaint.

On April 7, 2022, the Court sustained Super Center’s Demurrer to the First through Fifth Causes of action with leave to amend, and sustained the Demurrer to the Sixth Cause of Action without leave to amend.

On May 9, 2022, Plaintiff filed the First Amended Complaint asserting four causes of action:

1.    Negligent Hiring, Supervision and Retention;

2.    Sexual Assault;

3.    Sexual Harassment; and

4.    Intentional Infliction of Emotional Distress.

On June 10, 2022, Super Center filed the instant Demurrer to the First Amended Complaint and Motion to Strike.

On August 1, 2022, Super Center filed a Reply.

On August 11, 2022, the Court received Plaintiff’s Opposition.[1]

DISCUSSION 

                         I.     DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)  

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.) 

Super Center demurs to all four causes of action.

1.    First Cause of Action – Negligent Hiring, Supervision and Retention

Super Center demurs to the First Cause of Action for Negligent Hiring, Supervision, and Retention.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.)

Here, Super Center argues that Plaintiff alleges no evidence demonstrating that Super Center knew or should have known that Antonio had a propensity for sexual violence before hiring him. In ruling on this matter in the previous Demurrer, the Court noted that “there are no affirmative allegations showing that Defendant knew or should have known Antonio’s propensity prior to hiring him.” Again, the First Amended Complaint states no such facts.

In her Opposition, Plaintiff argues that the First Cause of Action can survive on the basis of respondeat superior or ratification. However, this argument is irrelevant to the First Cause of Action. The question here is not whether Super Center can be held liable for Antonio’s behavior, but whether Super Center was aware of Antonio’s propensity toward that behavior prior to hiring him. The First Amended Complaint contains no such factual allegations although even the most general allegations would be sufficient., Such as an allegation that defendants knew or should have known…

Accordingly, Super Center’s Demurrer to the First Cause of Action is SUSTAINED with leave to amend.

2.    Second, Third and Fourth Causes of Action – Sexual Assault, Sexual Harassment and Intentional Infliction of Emotional Distress

Super Center’s Demurrer to the Second, Third, and Fourth Causes of Action for Sexual Assault, Sexual Harassment and Intentional Infliction of Emotional Distress is based on the idea that the First Amended Complaint does not state facts sufficient for Super Center to be held liable for the tortious actions of its employee, Antonio. As Antonio’s conduct constitutes the basis for these Causes of Action, absent some form of vicarious liability, Super Center is not liable.

Plaintiff argues that liability for Antonio’s actions can be imparted to Super Center based on either respondeat superior or ratification. As it is extremely difficult to show that Antonio’s sexual harassment occurred in the course of his employment as a grocery store employee, the Court will consider first the theory of ratification.

“[A] principal may be liable for the wrongful conduct of its agent, even if that conduct is criminal, in one of three ways: (1) if the principal directly authorizes… [the tort or] crime to be committed; (2) if the agent commits the tort in the scope of his employment and in performing service on behalf of the principal, regardless of whether the wrong is authorized or ratified by [the principal], and even if the wrong is criminal; or (3) if the principal ratifies its agent’s conduct after the fact by… voluntar[ily] elect[ing] to adopt the [agent’s] conduct… as its own.” (Doe v. Roman Catholic Archbishop of Los Angeles, 247 Cal.App.4th 953, 969 (2016) (internal quotations omitted).)

“Ratification … may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee’s actions by the corporate agent. [Citations.] Such ratification may be inferred from the fact that the employer, after being informed of the employee’s actions, does not fully investigate and fails to repudiate the employee’s conduct by redressing the harm done and punishing or discharging the employee.” (Fisher v. San Pedro Hosp. (1989) 214 Cal.App.3d 590, 621.)

Here, the First Amended Complaint alleges that Plaintiff contacted Superior Grocers regarding Antonio’s actions. When Plaintiff spoke to a manager, the manager refused to tell her Antonio’s full name, to provide her Antonio’s contact information, to provide her with security camera footage that might have shown the incident, or to otherwise help her in identifying Antonio.

Though the Court found that the allegations in the Complaint were insufficient to show ratification, the addition of allegations regarding the manager’s refusal to provide Plaintiff with surveillance footage further supports the theory of ratification.

“The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. Whether an employer has ratified an employee’s conduct is generally a factual question. (Baptist v. Robinson (2006) 143 Cal.App.4^th 151, 169-70.)

All of the information in the Complaint indicates that Super Center’s agent not only failed to investigate the incident, but also obstructed Plaintiff’s attempt to investigate it herself. This is sufficient at the pleading stage to show ratification.

Accordingly, Super Center’s Demurrer to the Second, Third, and Fourth Causes of Action is OVERRULED.  

                       II.          Motion to Strike

Finally, Defendants move to strike Plaintiff’s prayer for punitive damages and attorneys’ fees from the First Amended Complaint.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc.,¿§ 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California¿Rules of Court, Rule 3.1322).¿ 

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc.,¿§ 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this¿state, a court rule, or an order of the court. (Code Civ. Proc.,¿§ 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court¿(1979) 99 Cal.App.3d 568, 575.)¿ 

a.    Punitive Damages

Plaintiffs argue that the Court should strike Plaintiff’s Prayer for Punitive Damages because the malicious torts of an agent cannot be held against a corporation unless the corporation has advanced knowledge of the tortious action, authorizes it, or ratifies it. (Motion at p. 6.)

However, as discussed above, the causes of action for sexual assault, sexual harassment, and intentional infliction of emotional distress all survive demurrer on the theory of ratification. Additionally, these actions were ratified by Defendant’s manager, with whom Plaintiff spoke.

All three of these claims can support a prayer for punitive damages. Accordingly, Super Center’s Motion to Strike the Prayer for Punitive Damages from the First Amended Complaint is DENIED.

b.   Attorneys’ Fees

Super Center also moves to strike Plaintiff’s prayer for Attorneys’ Fees from the First Amended Complaint.

Unsupported attorneys fee allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery.¿ (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699.) 

Therefore, Defendants’ Motion to Strike is DENIED.

DATED:  September 2, 2022                    _________________________ 

Hon. Robert S. Draper 

Judge of the Superior Court