Judge Steven A. Ellis, Case Number: 22STCV25458, Date: 2023-06-20 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV25458, Date: 2023-06-20 Tentative Ruling

Case Number: 22STCV25458 Hearing Date: June 20, 2023 Dept: 29

TENTATIVE

Defendant Fitness International, LLC’s demurrer is OVERRULED.

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 of the pleading liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) For a demurrer to be sustained, 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

Meet and Confer

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.)

Merits

Defendant demurs generally to the Third Cause of Action in the Second Amended Complaint (“SAC”) for negligent hiring, supervision and/or retention in the SAC. Defendant argues that Plaintiff fails to identify in the SAC any alleged employee that Defendant negligently hired and any prior knowledge of Defendant of the unfitness of any employee. Defendant contends Plaintiff’s conclusory allegations, without more, are insufficient.

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.)

Here, the SAC alleges that Defendant hired personnel who were unfit or incompetent to perform the work for which they were hired, that Defendant received prior complaints or reviews of the unfitness of the personnel, that Defendant knew or should have known about the unfitness of the personnel, that Defendant knew or should have known about the foreseeable risk of harm to minor children under the care of the unfit personnel, that Defendant nonetheless continued with its inadequate hiring and supervising of the unfit personnel, and that Plaintiff suffered a foreseeable injury as a result. (E.g., SAC, ¶¶ 44, 47, 48, 50, 51, 52, 53, 54.)

The Court finds that Plaintiff has alleged sufficient facts to state a cause of action for negligent hiring, supervision, and/or retention. Although Defendant argues that the SAC does not identify, by name, the employees who were unfit, Defendant has not cited to any authority that states that pleading the names of these employees is required, especially at the outset of the case. Defendant almost certainly knows the names of the personnel who were working at its premises on the date and time of the incident and, in any event, discovery will provide the parties with any necessary further clarification or development of the factual and evidentiary record.

Conclusion

Based on the foregoing, Defendant’s demurrer is OVERRULED.

Moving party is ordered to give notice.

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.