Judge: Serena R. Murillo, Case: 22STCV25458, Date: 2023-01-27 Tentative Ruling
Case Number: 22STCV25458 Hearing Date: January 27, 2023 Dept: 29
TENTATIVE
Defendant Fitness International Inc.’s demurrer is
SUSTAINED with 30 days leave to amend as to the causes of action for negligent
hiring, supervision, training, and retention.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a
cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City
of Los Angeles Dept. of Water and Power (2006) 144
Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116
Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153
Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)
Discussion
Before filing a demurrer, the
demurring party is required to meet and confer with the party who filed the
pleading demurred to for the purposes of determining whether an agreement can
be reached through a filing of an amended pleading that would resolve the
objections to be raised in the demurrer. (Code of Civ. Proc. § 430.41.)
The Court finds
that Defendant has filed a
sufficient meet and confer declaration. (An Decl.)
Defendant demurs to the FAC, first arguing
that the basis of Plaintiff’s FAC is that the minor plaintiff was injured due
to inadequate supervision by Defendant’s childcare employees. Thus, Defendant
argues that Plaintiff claims that Defendant negligently supervised Plaintiff
while under their childcare services is duplicative of Plaintiff’s first cause
of action for Negligence. In that regard, the facts alleged do not constitute a
separate and distinct cause of action of Negligent Supervision.
The elements for negligence
are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of
duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara
v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292,
318.) In California, negligence may be pleaded in general
terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)
A demurrer can be sustained due to one cause of
action being duplicative of another cause of action and thus adds nothing to the
complaint by way of fact or theory of recovery. (See Palm Springs Villas II Homeowners
Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)
Here, the third
cause of action for negligent supervision in the FAC alleges that: “Defendants
failed to assure that the children, including Plaintiff, were efficiently
supervised and instructed at the time of the subject incident; and Defendants
failed to exercise due care by assuring that the children, including Plaintiff,
knew of expected dangerous activities; and Defendants failed to adequately
supervise, instruct, and make sure that the children, including Plaintiff, were
not placed in foreseeable danger.” (FAC ¶ 48.)
The first cause of action for negligence
alleges that: “Given the dangerous nature of the activity that Defendants,
through their employees, agents, and/or contractors, allowed Plaintiff to
engage in, dangerous activity, and due to the condition of the premises, it was
reasonably foreseeable that Plaintiff would be harmed by the negligence in
failing to properly instruct Plaintiff to engage in only safe activities.”
(Id., ¶ 23.)
The Court finds that it appears there are
two separate theories of negligence pled, the failure to supervise children,
and the failure to instruct. As such, the causes of action are not duplicative.
However, under the third cause of action,
Plaintiff further alleges that “Defendants breached their duty to Plaintiff by,
inter alia, failing to adequately train, monitor, and supervise its
employees and/or agents, and/or failing to supervise and instruct its employees
and/or agents as to what was expected of them while they were supervising and
providing instruction to the children, which includes making sure that the
supervising staff and personnel did not instruct and observed that the children
were not participating in dangerous activities.” (Id., ¶ 51.) Defendant also takes issue with this portion of
the FAC, and also the fourth cause of action for negligent hiring, training and
retention, arguing that without any factual allegations of the identity of any
particular employee, the unfitness or incompetence of an employee to perform
any work for Defendant, what the employee did or did not do, and any facts to
show Defendant had any actual or constructive knowledge of the unfitness of
such alleged employee to proximately cause Plaintiff’s injury, Plaintiff’s
claim for Negligent Supervision is wholly unsupported.
Defendant’s argument has merit. The elements for
a cause of action for negligent hiring are: (1) employer’s hiring or
retention of an employee; (2) who is
incompetent or unfit; (3) employer had
reason to believe undue risk of harm would exist because of the employment; and (4) the harm
occurs. (Federico v.
Superior Court (1997) 59
Cal.App.4th 1207, 1213-1214; Doe v. Capital
Cities (1996) 50
Cal.App.4th 1038, 1054, 1055 [“[t]he cornerstone of a negligent hiring theory
is the risk that the employee will act in a certain way and the employee does
act in that way.”].) 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; see also Doe, supra, 50
Cal.App.4th at p. 1054.) To be liable for negligent supervision and hiring, there must
be a connection between the employment and injury. (Mendoza v.
City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “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. (Id. at
1339.) “The tort has development in California in factual settings
where the plaintiff’s injury occurred in the workplace, or the contact between
the plaintiff and the employee was generated by the employment
relationship.” (Id. at pp. 1339-1340.)
It appears that Plaintiff pleads two different
theories in the third cause of action, one that the child was negligently
supervised, and two that Defendant’s own employees were negligently supervised.
“What is necessary to
state a cause of action are the facts warranting legal relief, and not whether
plaintiff has provided apt, inapt, or no labels or titles for causes of
action.” (Alfaro v. Community Housing Improvement System & Planning
Assn., Inc. (2009) 171 Cal.App.4th 1356, 1371.) However, the Court finds that Plaintiff has not alleged sufficient
facts to state a cause of action for negligent hiring, supervision, training,
and retention. There are no facts
substantiating Plaintiff’s conclusory statements. For
example, there are no facts showing how Defendant’s employees were unfit to perform their duties, or how or why
Defendant knew or should have known of its employees’ unfitness. Accordingly,
the demurrer must be sustained with 30 days leave to amend as to Plaintiff’s
negligent hiring, supervision, and training causes of action,
including the negligent supervision of employees cause of action subsumed in
the third cause of action.
Conclusion
Based on the foregoing, Defendant’s demurrer is
SUSTAINED with 30 days leave to amend as to the causes of action for negligent
hiring, supervision, training, and retention.
Moving party is ordered to give notice.