18-CIV-03497 LIAWEI WANG, ET AL. VS. VENISCO CORP., ET AL.

LIAWEI WANG VENISCO CORP.
MICHAEL TRAIN CALDWELL

DEFENDANTS VENISCO CORPORATION DBA PREMIER GARAGE TAILORED, VENY PIROCHTA AND NICK GRANATO’S MOTION TO STRIKE PLAINITIFFS’ PUNITIVE DAMAGES TENTATIVE RULING:

Defendants’ motion to strike is GRANTED.

Plaintiffs cite no authority indicating that failure to conduct a background check under these circumstances constitutes “despicable conduct” or a “conscious disregard” of the rights or safety of others under Civil Code § 3294. Plaintiffs do not allege facts indicating that Defendants were aware of the alleged assailant’s criminal convictions.

The matters designated as (1) and (2) in the Notice of Motion are ordered stricken. Plaintiffs shall file and serve a First Amended Complaint that omits all of the stricken matter no later than December 28, 2018, or one week after service of written notice of this ruling, whichever is later.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court

18-CIV-03497 LIAWEI WANG, ET AL. VS. VENISCO CORP., ET AL.

LIAWEI WANG VENISCO CORP.
MICHAEL TRAIN CALDWELL

DEFENDANTS VENISCO CORPORATION DBA PREMIER GARAGE TAILORED, VENY PIROCHTA AND NICK GRANATO’S DEMURRER TO COMPLAINT TENTATIVE RULING:

Defendants’ demurrer to Plaintiffs’ complaint is OVERRULED.

Plaintiffs have not alleged facts sufficient to support a theory of vicarious liability, considering that there are no facts to indicate the alleged assailant was acting in the course and scope of his employment. However, Plaintiffs have alleged sufficient facts to state a cause of action for negligence under a theory of direct liability. Plaintiffs have alleged that Defendants’ own conduct in failing to conduct a background check was negligent. Whether Defendants breached the standard of care owed to its customers, and whether that breach caused Plaintiffs’ harm, are questions of fact properly resolved after further development of the facts.

Defendants’ claim that they had no legal duty to conduct a background check because none is imposed by statute is unpersuasive. Defendants owed a duty of ordinary care under all of the circumstances. Negligence liability will be imposed on an employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” Phillips v. TLC Plumbing, Inc., 172 Cal. App. 4th 1133, 1139–40, 91 Cal. Rptr. 3d 864, 868–69 (2009). In this case, Defendants operated a business which necessitates that their employees have access to private homes. As indicated above, whether Defendants should have known that hiring the alleged assailant created a particular risk of the harm alleged by Plaintiffs, and whether Defendants exercised ordinary care in failing to conduct a criminal background check, are questions properly resolved after further development of the facts. The fact that Defendants were ignorant of the alleged assailant’s criminal convictions, as claimed by Defendants, has no bearing on whether they should have known that hiring the alleged assailant created the particular harm that materialized.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.