Case Number: BC722192 Hearing Date: December 19, 2019 Dept: 40

MOVING PARTY: Defendant Darryl Dawson

OPPOSITION: Plaintiff Lisa Martinez

Plaintiff Lisa Martinez sues Defendant Darryl Dawson (“Defendant”) and other entities. Defendant was a medical courier who alleges she was assaulted by Defendant, who was an employee of the University of California, Los Angeles.

Plaintiff’s operative Complaint (“FAC”) against several defendants alleging causes of action for:

1) Negligence;

2) Premises Liability;

3) Sexual Battery;

4) Intentional Infliction of Emotional Distress;

5) Negligent Infliction of Emotional Distress;

6) Negligent Hiring, Supervision, and Retention.

On November 12, 2019, Defendant filed a demurrer as to the first cause of action. Defendant was originally referred to in the Complaint as Doe 1. The Second and Sixth causes of action have been dismissed as to Defendant.

First Cause of Action: Negligence

The elements of negligence are that “defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” Barber v. Chang (2007) 151 Cal.App.4th 1456, 1463. “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.

Defendant argues that the demurrer should be sustained because it is unclear what duty Plaintiff alleges he owed to her. Defendant argues that Plaintiff only alleges that defendants were required to provide a safe environment for employees and that they were required to exercise reasonable care and diligence in hiring, training, and supervision of its employees. (Complaint, ¶¶ 12, 13.) However, the Complaint alleges that Defendant was himself an employee and therefore could not owe any of those duties to Plaintiff.

The Court finds that Plaintiff has not sufficiently alleged her negligence claim.

Plaintiff alleged most of the elements of negligence. Plaintiff alleges that Defendant assaulted her and that that has resulted in damages. (Complaint, ¶¶ 10, 15.) However, the duties alleged in the first cause of action are duties owed by Defendant’s employer, rather than any duty Defendant himself owed.

Therefore, the demurrer is SUSTAINED.

Conclusion: Defendant’s demurrer as to the first cause of action is SUSTAINED.