Case Number: BC724438 Hearing Date: February 13, 2019 Dept: 4B

[TENTATIVE] ORDER RE:

DEMURRER TO COMPLAINT

MOTION TO STRIKE

I. Background Facts

Plaintiff John Dixon (“Plaintiff”) alleges that on July 20, 2017, Plaintiff was a customer at Defendant Home Depot U.S.A., Inc. (“Home Depot”). Plaintiff was in the men’s restroom. Defendant Maria Isabel Leon (“Leon”), while acting as an employee of Defendant Kellermeyer Bergensons Services, LLC (“Kellermeyer”), was cleaning the restroom. She screamed and swore at Plaintiff for being in the restroom. She hit him in the face and body with her hands.

On October 4, 2018, Plaintiff filed the operative Complaint against Defendants Leon, Kellermeyer, and Home Depot; asserting claims for (1) Assault and (2) Battery. On December 7, 2018, Kellermeyer filed the instant Demurrer. Plaintiff opposes.

II. 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, 147 Cal.App.4th at 747.)

III. 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. (See CCP § 430.41.) Kellermeyer fulfilled the meet and confer requirement before filing this demurrer. (See Rodolff Decl.)

Demurrer

Kellermeyer demurs to the Complaint on the basis that Plaintiff fails to state facts sufficient to sustain employer liability for intentional torts. An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) For the employer to be liable for an intentional tort, the employee’s act must have a “causal nexus to the employee’s work,” i.e., “inherent in the working environment” or “typical” to the employer’s business. (See Montague, supra, 223 Cal.App.4th at 1521; Lisa M., supra, 12 Cal.4th at 298-99.)

The employee’s conduct falls within the scope of her employment and there is a causal nexus if the conduct either: (1) is required by or incidental to the employee’s duties; or (2) it is reasonably foreseeable in light of the employer’s business. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.) An employer may also be liable for an employee’s acts where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Baptist v. Robinson (2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Id.) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Id.)

Kellermeyer argues an “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), and that there are no facts alleged suggesting “screaming and shouting” or striking a customer is a necessary or foreseeable part of cleaning a bathroom. Although Plaintiff maintains Leon’s acts occurred within the course and scope of her employment, and Plaintiff’s presence in the restroom prevented Leon from doing her job, there are no allegations as to how Leon’s alleged actions were incidental to her cleaning duties or that such actions were foreseeable or ratified by Kellermeyer.

Based on the foregoing, Plaintiff’s intentional tort claims does not state sufficient facts as to Kellermeyer. Kellermeyer’s Demurrer is SUSTAINED with 20 days’ leave to amend.

Motion to Strike

Kellermeyer argues the Complaint does not state any facts supporting the allegation Leon acted with oppression, fraud, or malice. However, the Complaint alleges Leon hit Plaintiff with her hands intending to cause injury. That is a sufficient statement of facts as to Leon.

Kellermeyer also argues the Complaint does not allege facts sufficient to make it liable for punitive damages based on Leon’s acts. As explained above, the Demurrer is sustained on this ground, making Kellermeyer’s Motion to Strike is MOOT.

Moving Party ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION
TO SET ASIDE DEFAULT; GRANTED

On
October 4, 2018, Plaintiff John Dixon (“Plaintiff”) filed this action against
Defendants Maria Isabel Leon (“Leon”), Kellermeyer Bergensons Services, LLC,
and Home Depot U.S.A., Inc. (collectively, “Defendants”) for assault, battery,
and exemplary damages relating to a July 20, 2017 incident. On November 27, 2018, default was entered
against Leon. Leon moves to set aside
default entry.

The
court has broad discretion to vacate the entry of default, default judgment, or
a dismissal where the moving party timely establishes a proper ground for
relief. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Code of Civil Procedure, section 473,
subdivision (b) contains two distinct provisions for relief from default. The first provision is discretionary and
broad in scope, providing: “The court may, upon any terms as may be just,
relieve a party or his or her legal representative from a judgment, dismissal,
order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.
Application for this relief shall be accompanied by a copy of the answer
or other pleading proposed to be filed therein, otherwise the application shall
not be granted, and shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.” (Code Civ. Proc., § 473, subd.
(b).)

The
second provision is mandatory and narrowly covers only default judgments and
defaults that will result in entry of judgments. It provides: “[T]he court shall, whenever an
application for relief is made no more than six months after entry of judgment,
is in proper form, and is accompanied by an attorney’s sworn affidavit
attesting to his or her mistake, inadvertence, surprise or neglect, vacate any
(1) resulting default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default judgment
or dismissal entered against his or her client, unless the court finds that the
default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.”
(Code Civ. Proc., § 473, subd. (b).)

The
general underlying purpose of Section 473, subdivision (b) is to promote the
determination of actions on their merits.
(Even Zohar Const. &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830,
838-839.)

Leon
moves to set aside default based on mistake, inadvertence, surprise, and
excusable neglect. Leon was personally
served with the summons and complaint on October 22, 2018. Upon being served with the summons and
complaint, Leon, who does not speak English, did not understand that she needed
to secure counsel and to respond to the complaint before default was entered. (Declaration of Rodrigo J. Bozoghlian, ¶¶ 3,
4.) Default was entered on November 27,
2018. (Bozoghlian Decl., ¶ 5.) Leon’s counsel claims that he spoke with the
court clerk, who informed him that default had not yet been processed and there
was a two-week processing delay. Leon
filed a motion to strike on December 3, 2018, and Leon contends this motion
should have prevented a default from being filed. Leon’s counsel sought a stipulation to set
aside default entry, but Plaintiff’s counsel would not agree to set aside
default entry.

Plaintiff
argues Leon’s counsel’s representations are based on hearsay and do not
establish a basis to set aside default entry.
Plaintiff’s counsel requests that if default entry is set aside, the
court award $1,000.00 in attorney’s fees for the time spent in requesting
default entry and in opposing this motion.

In
Reply, Leon submitted a declaration stating her English level is very limited
and she cannot read English. When she
was served with the lawsuit in this case, she did not understand the documents
or that she needed to immediately respond.
(Declaration of Maria Isabel Leon, ¶ 2.)

The
Motion to set aside default entry is GRANTED.
Plaintiff’s counsel’s request for monetary sanctions is DENIED.

Moving
party to give notice.