Case Number: BC643759 Hearing Date: May 31, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT CSC SERVICE WORKS’ DEMURRER TO COMPLAINT; OVERRULED

I. BACKGROUND

On December 13, 2016, plaintiff Claudia Feehan-Liste (“Plaintiff”) filed a complaint against defendants City of Los Angeles, County of Los Angeles, City of Los Angeles Department of Airports and Does 1 to 100 alleging causes of action for (1) dangerous condition of public property based on Government Code section 835 and (2) vicarious liability for wrongful acts or omissions by public entity employees and/or retention of unfit employees pursuant to Government Code section 815.2. On January 20, 2017, Plaintiff dismissed the County of Los Angeles from the action. On January 27, 2017, Plaintiff filed a first amended complaint (“FAC”).

The FAC alleges that on February 17, 2016, City of Los Angeles, County of Los Angeles, City of Los Angeles Department of Airports and Does 1 to 100 were negligent in owning, maintaining and cleaning a walkway surface at or near the American Airlines Remote Terminal Gate 44F. (FAC ¶ ¶11-12.) As a result, the FAC alleges that Plaintiff slipped and fell thereby sustaining injury. (Id. ¶ 13.)

On March 14, 2018, Plaintiff substituted CSC ServiceWorks (“CSC”), as a defendant for Doe 3 by an amendment to the complaint. On April 16, 2018, CSC demurred to the complaint. Plaintiff failed to file an opposition.

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 by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike 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. (CCP §§ 430.41 and 435.5.) The Court notes that CSC has complied with the meet and confer requirement. (See Decl. Miceli.)

b. Uncertainty

CSC contends that the FAC is uncertain because there are no factual allegations that might inform CSC with any clarity as to what is being alleged against it.

All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action. (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 157.)

Here, CSC was named as Doe 3 defendant by an amendment to the FAC. Notably, the first cause of action alleges that City of Los Angeles, County of Los Angeles, City of Los Angeles Department of Airports and Does 1 to 100 were negligent in owning, maintaining and cleaning a walkway surface at or near the American Airlines Remote Terminal Gate 44F. (FAC ¶ ¶11-12.) The second cause of action alleges that City of Los Angeles, County of Los Angeles, City of Los Angeles Department of Airports and other unknown defendants, were negligent in hiring and retaining employees who were not emotionally, mentally and physically qualified and competent to work. (FAC ¶¶ 22-23.)

The Court finds that these allegations sufficiently place CSC on notice of the claims asserted against it. Therefore, the Court OVERRULES CSC’s demurrer for uncertainty on the grounds that (a) demurrers for uncertainty are disfavored and should only be sustained where the complaint is so uncertain that the demurring defendant cannot reasonably respond thereto (see, e.g., Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616); and (b) here, Plaintiff’s FAC is not so uncertain that CSC cannot reasonably respond thereto. Moreover, even if the pleading is somewhat vague, ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

c. Government Code §§ 835 and 815.2

CSC argues that since CSC is not a public entity, Plaintiff cannot allege causes of action based on Government Code sections 835 and 815.2 against it because these sections solely hold public entities liable.

It is true that CSC is not a public entity pursuant to 811.2 and thus Government Code sections 835 and 815.2 do not apply to CSC. However, a demurrer tests the legal sufficiency of factual allegations in a complaint. (Rakestraw v. California Physician’s Service (2000) 81 Cal.App.4th 39, 42-43.) If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38–39.) Courts are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Id.) The courts of this state have long since departed from holding a plaintiff strictly to the “form of action” he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained. (Id.)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) Additionally, California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. (Id.)

Here, the FAC alleges that Plaintiff slipped and fell because the defendants, including CSC, were negligent in owning, maintaining and cleaning a walkway surface at or near the American Airlines Remote Terminal Gate 44F. (FAC ¶¶11-13.) The FAC further alleges that this injury was a result of negligent hiring and retention of unfit employees especially since the defendants knew that their employees were not emotionally, mentally or physically qualified, competent or fit to work and that the defendants failed to train, instruct, or supervise their employees. (Id. ¶¶ 22-23.) Notably, CSC is not a public entity, thus Plaintiff need only allege negligence in general terms, which means that it is sufficient to allege that an act was negligently done without stating the particular omission which rendered it negligent. (McBride v. Atchison, Topeka & Santa Fe Railway Co. (1955) 44 Cal.2d 113, 119.)

Thus, the Court finds that while the titles of the two causes of action may be improper, under liberal pleading standards, the factual allegations are sufficient to constitute causes of action based on negligence.

d. Statute of Limitations

It seems that in assuming that the demurrer would be sustained, CSC argues that it anticipates that Plaintiff will seek leave to amend the FAC to allege new causes of action. CSC contends that any new cause of action would be barred by the two-year statute of limitations since Plaintiff’s injury occurred on February 17, 2016, Plaintiff should have named CSC as a defendant by February 17, 2018, but failed to do so and instead did not name CSC as a defendant until March 12, 2018. CSC argues that the relation back doctrine does not apply because the relation back doctrine does not allow a party to amend a complaint to allege a completely new cause of action after the statute of limitations period has run.

As analyzed above, the Court has OVERRULED the demurrer. Thus, it is not apparent that Plaintiff will need to amend the FAC. If Plaintiff wishes to amend, such a request must be done via a noticed motion which CSC may oppose.

To the extent that CSC might be contending that Plaintiff’s current allegations against CSC are barred by statute of limitations since CSC was named as a defendant over two years after the injury, the Court OVERRULES the demurrer as well.

Regarding fictitious defendants, the court in Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 599 stated that “[w]here a complaint sets forth, or attempts to set forth, a cause of action against a defendant designated by fictitious name and his true name is thereafter discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date of the earlier pleading.”

On March 14, 2018, Plaintiff amended the FAC by substituting CSC for Doe 3. This amendment was made after the two-year statute of limitations had run. However, the modern rule with respect to actions involving parties designated by their true names in the original complaint is that, where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600.)

Here, the original FAC and the amended FAC allege the same facts, that on February 17, 2016, defendants, including CSC were negligent in owning, maintaining and cleaning a walkway surface at or near the American Airlines Remote Terminal Gate 44F. (FAC ¶¶ 11-13.) These pleadings also allege that this injury was a result of negligent hiring and retention of unfit employees. (Id. ¶¶ 22-23.) The only difference is the substitution of CSC for Doe 3. Both pleadings are thus based on the same general set of facts, therefore, the amendments are deemed filed as of the date of the FAC and thus, are timely and not barred by statute of limitations.

The Court notes that since Plaintiff is not required to file an amended complaint, CSC’s reliance on Shelton v. Superior Court (1976) 56 Cal.App.3d 66 has no effect on the case at hand because as noted by CSC, Shelton effectively held that the relation back doctrine does not allow a party to amend a complaint to allege a completely new cause of action after the statute of limitations period has run.

Thus, the demurrer based on statute of limitations is OVERRULED.

Moving Party is ordered to give notice.