Case Number: PC054490 Hearing Date: July 01, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

RICHARD JORDAN, ET AL.,
Plaintiff(s),
vs.
BRYAN SCOTT HALE, et al.,
Defendant(s).

Case No.: SC120099

[TENTATIVE] ORDER DENYING MOTION FOR LEAVE TO AMEND

Dept. 92
1:30 p.m. — #25
July 1, 2014

Plaintiff, Richard Jordan’s Motion for Leave to File First Amended Complaint is Denied.

1. Facts
Plaintiffs, Richard Jordan and Christele Durocher-Jordan filed this action against Defendants, Bryan Scott Hale, Brett Evan Davis, Estate Property Management Inc. dba Phoenician Estates, and Busby’s LLC for injuries that Plaintiff Richard Jordan sustained when he was attacked by Bryan Scott Hale and Brett Evan Davis, who are employees of Defendant Estate property Management, Inc., dba Phoenician Estates. In the complaint, Plaintiffs allege causes of action for Assault and Battery, IIED, Negligent Hiring and Retention, Negligence, and Loss of Consortium.

Plaintiff alleges that Defendants Hale and Davis were employed as movers for Phoenician Estates and were sent to Santa Monica to assist with moving a client’s home. On 9/22/11, Defendants Davis and Hale went to Busby’s, a bar in Santa Monica to drink. Thereafter, at 2:00 am, on 9/22/11, they left Busby’s and spotted Plaintiff Richard Jordan jogging, and while in the “course and scope of employment,” they snuck up behind Jordan and struck him on the back of the head and continued to brutally beat him with hand weights. Complaint ¶¶ 1-24.

2. Motion for Leave to File First Amended Complaint
a. Parties’ positions
Plaintiff has already asserted causes of action based on negligence against Defendant Estate Property Management, Inc. However, Plaintiff now seeks leave to add claims for assault and battery and IIED against Defendant Estate Property Management, Inc. Plaintiff contends that he recently became aware these causes of action may be asserted against these Defendants through responses to discovery. He argues that trial is still more than five months away and, therefore, there will be no prejudice.

In opposition to this motion, Defendant Estate Property Management, Inc. argues the motion should be denied because (a) all facts in the proposed amended complaint were pled in the original complaint; (b) good cause for filing the FAC has not been established; (c) the amendments are not proper; (d) no justification for changes to the negligence-based causes of action have been shown; and (e) Defendant will be prejudiced if the motion is granted.

b. General Law Regarding Leave to Amend
The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP §§473 and 576.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

c. General Law Regarding Vicarious Liability for Torts Committed on the Job
Under the doctrine of respondeat superior, “an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) The plaintiff has the burden of proving that the employee’s tortious act was committed within the scope of his employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209). Ordinarily this is a question of fact, but it becomes one of law “where the undisputed facts would not support an inference that the employee was acting within the scope of his employment.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447).

Under a two-prong disjunctive test, the conduct of an employee falls within the scope of his employment if the conduct either: (1) was required by or incidental to his duties; or (2) could reasonably have been foreseen by the employer in any event. (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139; Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 520). If the employee’s act satisfies either part of this two-prong test, the employer is liable. (Alma W., supra, 123 Cal.App.3d at p. 139.)

The “foreseeability” test is met if, in the context of the particular enterprise, the employee’s conduct is not so “unusual or startling” that it would seem “unfair” to factor the liability into the employer’s cost of doing business. See Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 C4th at 299, 302. The threshold inquiry is whether the wrongdoing may fairly be said to be characteristic of the employment activities. Thorn v. City of Glendale (1994) 28 CA4th 1379, 1383.

After-hours social activities and recreational pursuits are ordinarily deemed deviations from employment; and the question is whether the deviation is “minor” or whether it falls within a special rule under which respondeat liability may still be imposed. However, if a social or recreational activity on the employer’s premises is either (i) endorsed by the employer and may conceivably be of some benefit to the employer or (ii) absent proof of benefit to the employer, has become a “customary incident” of the employment relationship, an employee engaged in such activities (even if after hours) is still acting within the course and scope of employment. Rodgers v. Kemper Const. Co. (1975) 50 CA3d 608, 619–621.

The fact an employee might be “on-call” at all times for an employer does not create a continuous “scope of employment.” Incidental benefits to the employer from the employee’s constant availability are insufficient to saddle the employer with liability for any off-duty injury committed while the employee is on call. Rather, in determining “scope of employment,” the focus is on the specific activity performed by the employee at the time of the tortious act—not on the overall nature of the employment relationship. See Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 CA4th 1, 12.

Attendance at social functions may fall within the “special errand rule” where the event is connected with the employment and intended to benefit the employer who requested or expected the employee to attend. Boynton v. McKales, 139 CA2d at 789. However, there must be some sort of employer involvement in the activity. If the “social event” was in no way incidental to the employee’s job, and the employer neither required nor requested the employee’s attendance and participation, it is outside the scope of employment. Harris v. Trojan Fireworks Co. (1984) 155 CA3d 830, 835–837—no respondeat superior liability for injuries caused by drunken employee where drinking at informal gathering with co-employees was prompted by employee’s personal motivations, and drinking on work premises was expressly forbidden by employer.

d. Analysis
The Court need not consider most of Defendant’s arguments, as the Court finds the proposed amended complaint fails to state a claim for assault and battery and/or IIED against Defendant under a vicarious liability theory, and could not be amended to do so. The proposed amended complaint alleges the entity defendant sent the individual defendants to Santa Monica to assist with moving a client’s home. It alleges the entity defendant provided transportation, provided food and lodging, provided alcohol, and permitted employees to drink alcohol in management’s company. The FAC alleges Plaintiff, at approximately 1:30 a.m., went for a jog in Santa Monica. It alleges that, around 2:00 a.m., the individual defendants spotted him jogging alone and malicious struck him on the back of the head, causing him to fall to the ground, where they continued to beat him.

As noted above, the entity defendant can only be vicariously liable for the act if the conduct was necessary or related to the individual defendants’ work duties, or the conduct was reasonably foreseeable.

Plaintiff appears to concede that the assault and battery was not necessary to or related to the defendants’ work, which was moving a home. Plaintiff argues, however, that the conduct was foreseeable, because the individual defendants had a history of drug and alcohol abuse and criminal convictions, and the entity defendant provided alcohol for the individual defendants to consume.

Plaintiff mis-understands the meaning of “foreseeable” in this context. As the cases cited above make clear, the tortious conduct must be foreseeable due to the nature of the job for which the individual defendant was hired. For example, in Mary M. v. City of Los Angeles (1991) 54 C3d 202, the Court held that a city can be held vicariously liable for a police officer’s sexual assault, where the officer mis-uses his authority to coerce his victim. The Court did not rely on the foreseeability that the particular officer would mis-use his authority, but rather on the fact that officers in general can mis-use their authority, and that risk is foreseeable. In contrast, the Court went on to note that employers of other persons in positions of authority are not necessary vicariously liable for sexual assault, as police officers are uniquely situated to abuse their authority. Notably, in Maria D. v. Westec Residential Security, Inc. (2000) 85 CA4th 125, 145–149, the court held that a private security company is not liable for its employees’ sexual assaults, even if those employees pose as police officers, because private security guards do not have the same position of authority over private citizens as police officers.

Plaintiff argues that foreseeability should be judged by the individual defendants’ prior criminal history. That criminal history, however, goes only to the issue of negligent hiring, training, supervision, and/or retention. It does not go to vicarious liability. There is nothing inherent in the job of moving that would tend make an assault and battery foreseeable.

The motion for leave to add a cause of action for assault and battery and/or IIED against the entity defendant is denied. The proposed amended complaint fails, as a matter of law, to state a cause of action for assault and battery and/or IIED. The Court cannot see how further amendment could possibly cure this legal defect. Per California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, leave to amend is properly denied where the complaint fails to state a cause of action and could not be amended further to do so.

The Court notes that the proposed FAC also includes amendments to the currently-pled causes of action for negligence and negligent hiring, training, and retention. The moving papers fail, however, to explain why these amendments are being made and what effect the changes will have. The Court is therefore inclined to deny the motion for leave to change these causes of action as well. The Court notes that Defendant already filed its motion for summary judgment. A motion for summary judgment must be directed at the currently-operative complaint. If the Court grants the motion for leave to amend, Defendant will be required to re-draft its motion for summary judgment to attack the First Amended Complaint, as opposed to the original complaint. Because it does not appear the proposed changes to the negligence and negligent hiring, training, and retention causes of action are substantial, and because prejudice will result to Defendant if the causes of action are amended, the Court is inclined to deny the motion for leave to amend in its entirety.

Dated this 1st day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CAROLE A. CASTEEN, M.D.,
Plaintiff(s),
vs.

GEORGE CHARNOCK, M.D., ET AL.,

Defendant(s). )
)
)
)
)
)
)
)
)
)
)
) CASE NO: PC054490

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #24
July 1, 2014

Defendant, George Charnock, M.D.’s Motion for Summary Judgment is Granted.

Plaintiff, Carole A. Casteen, M.D. filed this action against Defendant, George Charnock, M.D. for medical malpractice/wrongful death arising out of the death of her mother, Helen Virginia Casteen.

Defendant moves for summary judgment. Defendant supports his motion with the expert declaration of Marc Gutin, M.D. Dr. Gutin sets forth his expert credentials, states what records he reviewed, details Defendant’s care and treatment of Plaintiff, and ultimately concludes that Defendant’s care and treatment of Plaintiff complied with the standard of care and did not cause or contribute to Plaintiff’s claimed injuries.

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

The Expert Declaration of Dr. Gutin is sufficient to meet Defendant’s moving burden to establish it is entitled to judgment as a matter of law. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard. Any opposition to the motion was due on or before 6/17/14. As of 6/26/14, the Court has not received any opposition to the motion. Plaintiff therefore necessarily failed to meet her burden, and the motion is granted.

Dated this 1st day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court