Judge Stephen I. Goorvitch, Case 22STCV19479 2023-03-01 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 22STCV19479, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV19479 Hearing Date: March 1, 2023 Dept: 39

Ann C. Hayman v. Berger, Inc., et al.

Case No. 22STCV19479

Demurrer

BACKGROUND

Plaintiff Ann C. Hayman (“Plaintiff”) filed this action against Berger, Inc. and Aveanna Staffing Services, LLC (collectively, “Defendants”) asserting causes of action for conversion, negligence, and financial elder abuse. Plaintiff alleges that she hired Defendants to provide home health care services for her partner, and one of Defendants’ employees stole her personal possessions. Previously, the Court sustained a demurrer to the causes of action for conversion and financial elder abuse, finding that theft by an individual employee does not convey liability against the employer under the doctrine of respondeat superior. The Court overruled the demurrer to the cause of action for negligence. Plaintiff alleged that Defendants failed to properly screen and investigate the aides they sent to Plaintiff’s home, which was sufficient. Plaintiff filed a first amended complaint, and Defendant again demurs to the causes of action for conversion and elder abuse.

LEGAL STANDARD

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

DISCUSSION

Under the doctrine of respondeat superior, an employer is liable for the torts of its employee if the employee was acting within the scope of employment. However, “employees do not act within the scope of employment when they abuse job-created authority over others for purely personal reasons.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1013.) The complaint alleges that Defendants were retained to provide healthcare services for Plaintiff’s partner, which has nothing to do with Plaintiff’s valuables. The law is clear: “[T]he employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) Plaintiff’s counsel argues that the thefts were an “outgrowth” of the employment, but that is not the case. The thefts did not arise from the employees’ performance of their duties, which were to care for Plaintiff’s partner. Rather, the thefts were incidental. The mere fact that “the employment brought the tortfeasor and victim together in time and place is not enough. . . . [T]he incident leading to injury must be an ‘outgrowth’ of the employment.” (Id., p. 298, citation omitted.) Put another way, “[r]espondeat superior liability should apply only to the types of injuries that as a practical matter are sure to occur in the conduct of the employer’s enterprise.” (Ibid., internal quotations and citation omitted.) Thefts by employees are not “sure to occur” as part of their employment.

Nevertheless, Civil Code section 2339 states that an employer may be liable for intentional torts that were “authorized or ratified.” Plaintiff alleges that there was ratification as follows:

Plaintiff promptly notified defendants of the theft of her property and of the wrongful conduct by defendant’s employee. Despite knowing of the wrongful conduct by their employee, defendants did not discharge, but instead retained, the employee responsible for the theft. Defendants thereby ratified the criminal conduct of its employee and became responsible for it.

(First Amended Complaint, ¶ 13.) These allegations are sufficient for pleading purposes for a common law claim. “Ratification is not an element of a claim; it is a choice to adopt someone’s act as one’s own. Evidence of the ratification may come in many forms, for example where an employer fails to terminate, investigate, or respond to charges that an employee has committed an intentional tort.” (Ratcliff v. The Roman Catholic Archbishop of Los Angeles (2022) 79 Cal.App.5th 982, 1003, citing C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110-1111.) Therefore, Plaintiff’s allegations are sufficient for purposes of the cause of action for conversion.

Plaintiff’s allegations are not, however, sufficient to state a claim for elder abuse. Statutory causes of action must be pleaded with particularity. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) This includes causes of action for elder abuse. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) Plaintiff does not allege sufficient facts to establish ratification with respect to the heightened pleading standard.

CONCLUSION AND ORDER

The Court orders as follows:

1. The demurrer is overruled with respect to the first cause of action.

2. The demurrer is sustained with respect to the third cause of action. The Court denies leave to amend. This order is without prejudice to Plaintiff seeking leave to amend if she develops sufficient facts during discovery.

3. Defendants shall file an answer within thirty (30) days.

4. Defendants’ counsel shall provide notice and file proof of such with the Court.