Judge Ronald F. Frank, Case Number: 23TRCV01277, Date: 2025-02-11 Tentative Ruling

On December 31, 2024, Defendant LAZ, filed a Demurrer and Motion to Strike. On January 29, 2025, Plaintiff, filed a joint opposition brief. On February 4, 2025, Defendant LAZ filed reply briefs.

On December 31, 2024, Defendant City filed a Demurrer. On January 29, 2025, Plaintiff filed an opposition brief. On February 4, 2025, Defendant City filed a reply brief.

II. ANALYSIS

Defendant, LAZ’s Demurrer

Defendant LAZ demurs to Plaintiff’s SAC on the grounds that it argues Plaintiff’s first, second, and third causes of action fail to state sufficient facts to constitute a cause of action against Defendant and are uncertain, ambiguous, and unintelligible as to what claims are being asserted against which Defendants. Plaintiff alleges that individual defendant Marylani Togiola caused her “marked vehicle” to collide with Plaintiff’s vehicle, causing a collision. (SAC ¶ 10.) The SAC also alleges that Togiola was working at the time as a “uniformed parking enforcement officer” for both Serco and LAZ Karp, which in turn had allegedly been contracted for by the City of Inglewood to provide parking enforcement services for the City. (Id.) The SAC does not allege what the markings were on the car nor whose uniform Togiola was wearing, i.e., City of Inglewood markings and uniform, LAZ Karp marking and uniform, or Serco markings and uniform. Plaintiff also alleges that Togiola was and employee of both LAZ Karp and Serco, and that LAZ Karp and Serco were acting as an independent contract for the City. (SAC ¶14.) Paragraph 15 then alleges that Togiola acted as the City’s agent by virtue of the independent contractor relationship(s). The SAC further alleges that when Plaintiff approached Togiola to obtain insurance information, Togiola punched Plaintiff in the face multiple times. (SAC ¶11.) Plaintiff seeks to hold either or both of the City and LAZ Karp responsible for Togiola’s actions but has dismissed Serco without prejudice.

Legal Standard

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[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.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Failure to Specifically Allege Allegations and Ratification

First, LAZ asserts argue that Plaintiff fails to allege any intentional conduct by LAZ itself, fails to include allegations demonstrating LAZ’s ratification of any Defendant’s intentional conduct, fails to plead facts showing how LAZ knew, should have known, or had advanced knowledge of any alleged “unfitness or dangerous propensity” of Defendant Togiola, and failed to include facts to support conclusory allegations that "Defendant LAZ Karp Associates is vicariously liable for intentional acts of Defendant Togiola and/or the 'collision' and/or 'incident.'" (SAC ¶16; ¶21-22; ¶ 47.) The SAC alleged both the negligent act of causing the motor vehicle collision as well as the intentional tort of the alleged physical battery.

“‘California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting a tort.¿ “Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.”¿ [Citation.]’¿ [Citation.]”¿ (Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 879.) However, “[m]ere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. [Citation.] ‘As a general rule, one owes no duty to control the conduct of another . . .’ [Citation.]” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.)

Pursuant to “the doctrine of respondent superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment.”¿ (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.)Furthermore, “an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondent superior, even though the employer has not authorized the employee to commit crimes or intentional torts.”¿ (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)But such torts must “have a causal nexus to the employee's work” and must be foreseeable considering the tortfeasor's duties. (Id., at p. 297, 299.) “Generally, the issue of scope of employment is a question of fact. However, the issue becomes a question of law when the facts are undisputed, and no conflicting inferences are possible.” (Perez, supra, 41 Cal.3d at p. 968 [Citation omitted].)

Here, Plaintiff fails to allege in any detail how the alleged battery had a causal nexus to Togiola’s work and was reasonably foreseeable considering the alleged tortfeasor’s duties. Instead, Plaintiff merely asserts “[t]he type of enterprise, parking enforcement, has a risk of injury typical of or broadly incidental to the enterprise that was undertaken and was broadly foreseeable from the duties of Defendant Togiola, and her employer Defendant LAZ Karp and Defendant Serco. As a result, Defendant Serco, Defendant LAZ Karp and Defendant City are vicariously liable to Plaintiff for the intentional acts, omissions or actions of Defendant Togiola which resulted in the INCIDENT and Collision.” (SAC, ¶ 21.) LAZ’s moving papers also contend that Plaintiff failed to plead ratification by LAZ, but SAC ¶21 in a conclusory way alleges that all of Serco, City and LAZ Karp either expressly or impliedly authorized or ratified the “tortious acts of Defendant Togiola.” While this would be sufficient as to the negligent conduct, it is not in the Court’s view sufficiently detailed with respect to the alleged intentional tort or punching Plaintiff in the fact multiple times. Physical altercations with drivers or parked cars is not customarily or typically within the ambit of a parking enforcement officer’s duties and responsibilities. It is not reasonably foreseeable that a person driving a car in the course or their employment or independent contact duties would punch another driver whose car was allegedly the subject of a collision, any more than it is reasonably foreseeable that one driver would discharge a firearm or wield a sword at the other driver. Without greater development of factual circumstances or contentions the Court finds there to be an insufficient allegation of the causal nexus between a parking enforcement officer’s activity for a public agency or a private contractor to hold the City or their contractor responsible for the alleged intentional tort of the enforcement officer. As such, the Court SUSTAINS demurrer to the first and fourth cause of action for intentional tort. Leave to amend again will depend on oral argument.

Defendant LAZ Karp demurs as to each of the causes of action on the same grounds. The Court overrules the Demurrer as to the second and third causes of action because the allegations are sufficient as to the claimed negligent misconduct but not as to the intentional tort claim.

Defendant LAZ’s Motion to Strike

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The court may also strike 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.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that the pleading has irrelevant, false improper matter, or has not been drawn or filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Id., § 437.)¿ “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Discussion

Here, LAZ Karp moves on a Motion to Strike portions of the SAC on the ground that it argues irrelevant, false, or improper matter has been asserted, including alleged intentional conduct incorporated in her definitions of the terms “collision” and “incident.” Because this Court has sustained the demurrer as to the First Cause of Action against LAZ Karp, the motion to strike portions of the SAC is mooted.

Defendant City’s Demurrer

City demurs to the SAC on the grounds that it argues Plaintiff’s first, second, and third causes of action fail to state sufficient facts to constitute a cause of action against Defendant and are uncertain, ambiguous, and unintelligible as to what claims are being asserted against which Defendants.

Discussion

Previously, this Court has sustained City’s demur because it found that Plaintiff failed to plead her FAC with particularity, including failing to include any allegations that Serco Group was a public entity as the alleged tort-committing employee cannot simultaneously be working in the course and scope of her employment for multiple entities, one of which is public and one of which is private, when committing the allegedly tortious conduct. This allegation is also contrary to the previous pleading. In its prior ruling, the Court indicate that the FAC was uncertain as to whether Plaintiff was alleging that Serco Group was hired as a vendor or contracting party though the City of Inglewood or City of Los Angeles.

Since that filing, Plaintiff has dismissed County of Los Angeles, and added the allegation that City of Inglewood is vicariously liable for the acts and omissions of its claimed independent contractor, Defendant Serco and Defendant LAZ and their agents and employees… pursuant to Government Code section 815.4.

Government Code section 815.2 (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.”¿ Government Code section 815.4 provides, “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.”

“When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury.”¿ (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249 (de Villers).) Accordingly, for Defendants to be vicariously liable to Plaintiff for negligent hiring, Defendants’ supervisory employees or independent contractors must have owed Plaintiff a duty of care due to the existence of a special duty. (Ibid.)

Vicarious liability has only been imputed to public entities based on alleged negligent hiring claims where there is a “special relationship” that imposes an affirmative duty on the public entity.¿ For example, courts have recognized that “a special relationship is formed between a school district and its students to impose an affirmative duty on the district to take all reasonable steps to protect its students.”¿ (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 715.) School districts have been found vicariously liable for bad acts carried out by teachers they employed. (See, e.g., C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879 (school district may be found vicariously liable under § 815.2 for negligence of administrators or supervisors in hiring, retaining and supervising a school employee who sexually harassed student).) Another example of a “special relationship” that justifies applying vicarious liability is where the defendant is a common carrier.¿(See, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 789.)

Here, Plaintiff’s SAC fails to allege any facts from which one could glean that the City had any knowledge or information about alleged Togiola’s violent or vehicular management negligent propensities prior to the subject incident. There are no allegations as to the City’s relationship between Togiola and City other than as the alleged employee of an outside independent contractor. In fact, the SAC does not even contain the word “duty”. As noted by City, and in this Court’s previous discussions on uncertainty, Plaintiff may not allege that Togiola was both: (1) an employee of independent contractors, and (2) an agent/employee of the City through that same contractual relationship. As the Court reads the SAC, Plaintiff is not alleging any longer that Togiola was a City employee, but rather than the City has responsibility for Togiola’s misconduct by virtue of her status as the employee of an outside independent contractor. That alleged relationship is quite attenuated when it comes to the first cause of action, and for the reasonable outlined above the Court SUSTAINS the Demurrer as to the First Cause of Action against the City. As to the second and third causes of action, the SAC does not allege any special relationship here, does not allege that the City permitted the use of the City of Inglewood uniform or logo on Togiola’s vehicle, or any other factual allegation as to how the City would be responsible for alleged negligent hiring or how the City would have had any actual or constructive notice of Togiola’s alleged unfitness. As such, the Court’s tentative ruling is to SUSTAIN the demurrer to the Second and Third causes of action, and to discuss at oral argument the availability of further leave to amend.

III. CONCLUSION