Case Name: Gandjei v. Barnes, et al.
Case No.: 2015-1-CV-278999

According to the allegations of the first amended complaint (“FAC”), defendants Roberta Hodgert (“Roberta”), Sabrina Barnes (“Barnes”) and Charles Thompson (“Thompson”) were making improvements at the residence located at 1668 Austin Avenue in Los Altos, owned by defendant Eric Barlich (“Barlich”). (See FAC, ¶¶ 10-12.) Barlich wanted to rent the property as soon as possible, so he agreed to have Roberta, Barnes and Thompson repair, clean up and fix the premises in exchange for an early possession of the premises by Roberta, and a reduced deposit. (See FAC, ¶ 11.) Thompson brought his pit bull, Theodore, to the property; however, he was arrested and left the dog at the premises, leaving Roberta and Barnes to care for Theodore. (See FAC, ¶ 13.) Roberta and Barnes let the pit bull roam free within the house and did nothing to secure it. (See FAC, ¶ 14.) On March 18, 2014, while Roberta and Barnes were bringing construction material into the house, Theodore exited the premises and attacked plaintiff Azita Gandjei (“Plaintiff”) and Plaintiff’s black Tibetan terrier, resulting in injury and medical care. (See FAC, ¶¶14-15.) Theodore possessed vicious and dangerous propensities and was inclined to attack, bite and maul other persons in and about the premises, and Barnes, Roberta and Thompson knew of Theodore’s viciousness and dangerousness and its inclination to attack. (See FAC, ¶¶ 20-21.) On August 18, 2015, after Barlich’s death, Gail Van Ryn and Boston Private Bank & Trust Co. became the personal representative of Barlich, and administrator of the Estate of Eric Barlich.

On July 24, 2017, Plaintiff filed the FAC against defendants Roberta, Barnes, Thompson, and the Estate of Eric Barlich, asserting causes of action for:

1) Negligence;
2) Strict liability; and,
3) Statutory liability.

Defendants Boston Private Bank & Trust Co. and Gail Van Ryn as personal representatives of The Estate of Eric Barlich demur to the second and third causes of action against them.

Second cause of action for strict liability

Demurring defendants Boston Private Bank & Trust Co. and Gail Van Ryn as personal representatives of The Estate of Eric Barlich (“demurring defendants”) argue that the second cause of action does not allege any basis for the imposition of strict liability against demurring defendants. Indeed, as demurring defendants assert, Civil Code section 3342 states that “[t]he owner of any dog is liable for the damages suffered by any person who is bitten by the dog….” (Civ. Code § 3342, subd. (a).) The statute only provides for strict liability against the owner of the dog, and the FAC alleges that Thompson is the owner. Likewise, “[a] common law strict liability cause of action may also be maintained if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal’s vicious propensities.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115.) As Thompson is alleged to be Theodore’s owner, Barlich is not strictly liable for the injuries caused by Theodore. In opposition, Plaintiff apparently concedes this issue as the opposition fails to address this argument. Accordingly, the demurrer to second cause of action for strict liability is SUSTAINED without leave to amend as to demurring defendants Boston Private Bank & Trust Co. and Gail Van Ryn as personal representatives of The Estate of Eric Barlich.

Third cause of action for statutory liability

“[S]tatutory causes of action must be pleaded with particularity….” (Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal. 4th 771, 790.) The third cause of action for statutory liability alleges that “the negligence of Sabrina Barnes, Roberta Hodgert, and Charles Thompson is imputed to the Estate of Eric Barlich in that said defendants or some of them, in violation of Lab. Code § 2750.5… performed work for Eric Barlich for which a valid contractor’s license was required.” (FAC, ¶ 24.) Demurring defendants argue that they cannot be liable for damages caused by Theodore on a vicarious liability theory as the allegedly tortious conduct did not occur within the scope of employment. (See Defs.’ memorandum of points and authorities in support of demurrer, pp.4:8-27, 5:1-28, 6:1-27, 7:1-18.)

Section 2750.5 states that “[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.” (Lab. Code § 2750.5.) The parties agree that the third cause of action is one based on vicarious liability. Plaintiff argues that the FAC alleges that Barnes, Roberta and Thompson were the agents, servants and employees, and that this is an ultimate fact which must be taken as true. (See Pl.’s opposition to demurrer (“Opposition”), pp.2:2-28, 3:1-6.) Plaintiff similarly asserts that since the FAC alleges that Barnes, Roberta and Thompson were acting within the course and scope of their employment, such allegation must be also be taken as true and be determined by a trier of fact. (See Opposition, pp.3:7-26, 4:1-8.)

The California Supreme Court has stated: “[t]he rule of respondeat superior is familiar and simply stated: 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.) “Respondeat superior liability should apply only to the types of injuries that “‘as a practical matter are sure to occur in the conduct of the employer’s enterprise.’” (Id. at p.298, quoting Hinman v. Westinghouse Elec. Co. (1970) 2 Cal. 3d 956, 959.) “The nexus required for respondeat superior liability-that the tort be engendered by or arise from the work-is to be distinguished from ‘but for’ causation.” (Id.) “That the employment brought tortfeasor and victim together in time and place is not enough.” (Id.) “We have used varied language to describe the nature of the required additional link (which, in theory, is the same for intentional and negligent torts): the incident leading to injury must be an ‘outgrowth’ of the employment [citation]; the risk of tortious injury must be ‘inherent in the working environment’ [citation] or ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.’” (Id.)

Here, Plaintiff is correct that the allegation of agency is an ultimate fact. However, the allegation that Barnes, Roberta and Thompson were acting within the course and scope of their employment is a conclusion of law that is not admitted on demurrer. (See Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (stating that “[o]n demurrer, a court must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff’s contentions nor conclusions of law or fact”); see also McIvor v. Savage (1963) 220 Cal.App.2d 128, 134 (statement “that the parties were not acting in the ‘course or scope’ of their employment ‘is no more than a mere conclusion of law’”); see also Martinelli v. Stabnau (1935) 11 Cal.App.2d 38, 40 (stating that the statement that one is acting in the scope of their employment is a conclusion of law when the supporting facts are not in dispute”); see also Hendy v. Losse (1991) 54 Cal.3d 723, 740 (stating that “[c]onduct is within the scope of employment only if the servant is actuated to some extent by an intent to serve his master…”).) As demurring defendants argue, the FAC alleges that Barlich “agreed that Roberta Hodgert, her friend Sabrina Barnes and Charles Thompson would repair, clean up and fix the premises which was in a dilapidated and run-down condition before the Hodgert occupancy… [t]he premises needed to be cleaned, painted, dry rot repaired in the bathroom floor, new plumbing fixtures installed, window dressings needed to be replaced, brick work in the backyard walkway, dry wall and stucco needed to be applied and the backyard needed to be cleaned… [i]n exchange, Eric Barlich would allow the Hodgerts to take possession of the premises earlier and not pay a large deposit.” (FAC, ¶ 11.) The FAC does not allege facts suggesting that an attack by Thompson’s dog Theodore was somehow inherent in the working environment, an outgrowth of the employment or typical of or broadly incidental to the enterprise associated with hiring people to repair, clean up and fix premises in a dilapidated and run-down condition. On the contrary, the FAC specifically alleges that Thompson would just “bring his pit bull dog with him and leave it at the house… [and u]nexpectedly, and several days prior to the dog attack, Charles Thompson was arrested on a warrant, jailed and left his pit bull at the premises… [and] Roberta Hodgert and Sabrina Barnes would occasionally stay overnight at the premises while they were working for Mr. Barlich in preparing the premises for occupancy; and they would care for the pit bull dog named Theodore.” (FAC, ¶ 13.) “Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts… California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-1236 (also stating that “[u]nder this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient”).) Accordingly, the more specific allegations demonstrate that demurring defendants cannot be held vicariously liable pursuant to Labor Code section 2750.5. In opposition, Plaintiff does not suggest any facts to suggest how she may possibly amend her third cause of action so as to allege a viable cause of action against demurring defendants. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Accordingly, the demurrer to the third cause of action for statutory liability based on Labor Code section 2750.5 is SUSTAINED without leave to amend as to demurring defendants Boston Private Bank & Trust Co. and Gail Van Ryn as personal representatives of The Estate of Eric Barlich.

The Court will prepare the Order.