Judge: William A. Crowfoot, Case: 21STCV34582, Date: 2022-09-14 Tentative Ruling

Case Number: 21STCV34582    Hearing Date: September 14, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On September 20, 2021, plaintiff Cheryl Ann Thomas (“Plaintiff”) filed this action against defendants GZ Portfolio V 80 LLC, Golden Z Holdings LLC, and Golden Bee Management LLC (collectively, “Defendants”).  On November 29, 2021, Plaintiff filed a First Amended Complaint.  On February 22, 2022, Plaintiff filed a Second Amended Complaint (“SAC”).  On April 13, 2022, the parties filed a stipulation acknowledging that the SAC was the operative complaint. 

On May 23, 2022, Defendants filed a demurrer and motion to strike. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

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, subd. (b)(1).)  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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.   Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

B.   Demurrer

Defendants demur to Plaintiff’s causes of action for negligence and NIED only insofar as they are “based on a theory of negligent hiring, training, maintenance, and employment.”  However, a general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer.  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.)  Defects in a portion of the complaint can be challenged by a motion to strike instead.  (Ibid.) 

Therefore, the Court construes Defendants’ demurrer as a motion to strike the allegation that Defendants “negligently hired, trained and employed a negligent, incompetent, unfit, careless and reckless individual(s) with insufficient experience to properly and reasonably maintain the living area(s) for the tenants of [their] commercial realty.”  (SAC, ¶¶ 43, 56.) 

CACI 426 sets forth the elements of a cause of action for negligent hiring: (1) the defendant employer must have hired the subject employee; (2) the subject employee was (or became) unfit or incompetent to perform the work for which he or she was hired, or exposed others to a particular risk; (3) the defendant employer knew or should have known that the subject employee was unfit or incompetent to perform the work for which he or she was hired, or exposed others to a particular risk; (4) the subject employee's unfitness, incompetence, or particular risk factors caused the plaintiff to sustain damages; and, (5) the defendant employer's negligence in hiring and supervising the subject employee was a substantial factor in causing the alleged harm.

Plaintiff’s allegation of negligent hiring is improperly buried in her causes of action for negligence and NIED.  As Defendants correctly state, a cause of action for negligent hiring charges the defendant employer with direct liability, which is separate from vicarious liability for the conduct of the defendant’s employee.  If Plaintiff seeks to assert a cause of action for negligent hiring, Plaintiff fails to allege all of the elements required, including that Defendants knew or should have known that the employee was unfit or incompetent, and that such unfitness or incompetence caused Plaintiff’s damages.  The Court disagrees with Defendant’s claim that Plaintiff must allege with specificity “who such individuals were, and why their hiring, training, employment was negligent, . . . [and] how they had insufficient experience to properly and reasonably maintain the living areas of the Subject Property.”  (Demurrer, 7:18-21, emphasis original.)  A plaintiff may plead negligence in general terms, meaning that it is sufficient to allege that an act was negligently done without stating the particular omission which rendered it negligent.  (McBride v. Atchison, Topeka & Santa Fe Railway Co. (1955) 44 Cal.2d 113, 119.)  Also, the names of Defendants’ employees or agents are more likely to be within Defendants’ possession, not Plaintiff’s. 

Accordingly, the Court sustains the demurrer and STRIKES the allegations that “Defendants negligently hired, trained and employed a negligent, incompetent, unfit, careless and reckless individual(s) with insufficient experience to properly and reasonably maintain the living area(s) for the tenants of this commercial realty” (SAC, ¶ 43) and “Defendants negligently hired, trained, maintained, and employed negligent, incompetent, unfit, careless and reckless staff with insufficient experience to identify these problems” (SAC, ¶ 56).  Plaintiff has 20 days’ leave to amend the Complaint to add a separate cause of action for negligent hiring. 

C.   Motion to Strike

Defendants move to strike Plaintiff’s request for punitive damages.  A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.)  The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).)

Plaintiff only asserts conclusory allegations in support of her request for punitive damages.  Plaintiff does not allege with any specificity how Defendants' conduct was oppressive, fraudulent, or malicious.  Further, Plaintiff does not allege an officer, director, or managing agent of Defendants who had advanced knowledge of the unfitness of an employee and employed them with conscious disregard, or authorized or ratified an act of oppression, fraud, or malice by the employee.  Accordingly, Defendants’ motion to strike is GRANTED. 

IV.     CONCLUSION

Defendants’ demurrer is SUSTAINED insofar as the Court STRIKES the allegations of negligent hiring in Paragraphs 43 and 56.  Plaintiff has 20 days’ leave to amend to add a cause of action for negligent hiring. 

Defendant’s motion to strike Plaintiff’s punitive damages allegations is GRANTED.  Plaintiff is not granted leave to amend the request for punitive damages at this time.  However, if additional facts are discovered later on in the litigation, Plaintiff may file a motion for leave to amend. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.