Case Number: BC696803 Hearing Date: March 19, 2019 Dept: 4A

Motion for Judgment on the Pleadings

The court considered the moving, opposing, and replying papers.

BACKGROUND

On March 2, 2018, plaintiffs Evelia Villar, individually and as successor-in-interest to Michael Villar, Antonio Villar, Cynthia Villar, and Rosa Villar (“Plaintiffs”) filed a complaint against defendants Jenny Au, Alvin Au, Moises Garcia, and Victor Garcia (“Defendants”). Plaintiffs’ complaint alleged wrongful death (negligent hiring/retention/training/supervision), wrongful death (dangerous condition), survival action, negligent infliction of emotional distress, and wrongful death (battery) arising out of an altercation on June 10, 2017.

Trial is set for September 3, 2019.

PARTY’S REQUEST

Defendants Jenny Au and Alvin Au (“Moving Defendants”) request this court for an order granting their motion for judgment on the pleadings as to Plaintiffs first cause of action for wrongful death (negligent hiring) on the ground that insufficient facts were plead in Plaintiffs’ complaint.

LEGAL STANDARD

California Code of Civil Procedure section 438 states, in relevant part: “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1) The motion provided for in this section may only be made on one of the following grounds: . . . . (B) If the moving party is a defendant, that either of the following conditions exist: . . . . (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”

A motion for judgment on the pleadings “has the purpose and effect of a general demurrer.” (Smiley v. Citibank (South Dakota), N.A. (1995) 11 Cal.4th 138, 146 (citation omitted).) “[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein. As appropriate, however, it may extend its consideration to matters that are subject to judicial notice. In this, it performs essentially the same task that it would undertake in ruling on a general demurrer.” (Id. (citations omitted).)

DISCUSSION

“[An employer’s duty . . . is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214 (emphasis omitted).)

Moving Defendants contend that Plaintiffs have not alleged sufficient facts for their negligent hiring cause of action because Plaintiffs’ contention that Moises Garcia’s past convictions for sex crimes did not notify Moving Defendants of a propensity for murder. (Motion, pp. 4:12-6:24.) More specifically, Moving Defendants argue that notice of a sexual assault does not put them on notice of a potential for a non-sexual assault. (Motion, p. 6:11-6:14.)

Moving Defendants also contend that they did not owe a duty of care to Michael Villar, the deceased, because the assault did not arise out of Moises Garcia’s work-related functions. (Motion, pp. 6:25-8:7.) In support, Moving Defendants argue the meeting between Moises Garcia and the deceased were incidental to Moises Garcia’s work functions because the deceased was not a resident at the property Moises Garcia managed, the dispute was over Moises Garcia’s personal vehicle, and the altercation occurred on a weekend at 12:25 a.m. (Motion, p. 7:8-7:19.) Moving Defendants further argue the verbal altercation arose from Moises Garcia’s personal vehicle blocking the deceased’s vehicle, which is unrelated to Moises Garcia’s job duties. (Motion, p. 7:20-7:28.)

Plaintiffs have alleged that Moises Garcia was a convicted felon and violent sex offender previously convicted of rape by force, rape in concert with force or violence and oral copulation in concert with force of violence. (Compl., ¶ 6.) Plaintiffs also alleged that Moving Defendants knew or should have known of Moises Garcia’s prior violent felony convictions. (Compl., ¶ 6.) Plaintiffs further alleged that Moises Garcia was the on-site manager for the subject premises, which included the responsibilities of assisting in the maintaining of the property, compliance with fire and safety codes, and receiving tenant complaints. (Comp. ¶ 5.)

Plaintiffs did not merely allege that Moises Garcia’s past sexual felonies put Moving Defendants on actual or constructive notice of Moises Garcia’s potential for the altercation. Rather, Plaintiffs alleged that Moises Garcia’s sexual felonies, that were committed in concert with force or violence, put Moving Defendants on notice or should have put Moving Defendants on notice of the potential of the subject altercation. Taken as true, sufficient facts have been alleged to defeat Moving Defendants first argument for their motion for judgment on the pleadings.

Similarly, sufficient facts have been alleged to defeat Moving Defendants second argument for their motion for judgment on the pleadings. Namely, Plaintiffs allegation that Moises Garcia was responsible for maintaining the property indicates that it was within his responsibilities to ensure vehicles were not blocked. The timing of the dispute and the fact that the blocking vehicle was Moises Garcia’s is immaterial. Rather, the complaint, on its face, demonstrates that Moises Garcia had a responsibility to maintain the property, he was employed as an on-site manager for Moving Defendants, and the altercation occurred while Moises Garcia was carrying out his duty of maintaining the property.

The court finds that the complaint states facts sufficient to constitute a cause of action against Moving Defendants for negligent hiring.

The motion is DENIED.
Plaintiffs are ordered to give notice of this ruling.