Defendant’s demurrer/motion to strike Plaintiffs’ First Amended Complaint.

Demurrer overruled in part, and sustained with 21 days’ leave to amend in part. Motion to strike denied.

Demurrer

The demurrer to the first cause of action for elder abuse is overruled.

The Elder Abuse and Dependent Adult Civil Protection Act (the “Act”) to protect elders and dependent adults “from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Under the Act, “[a]buse of an elder or a dependent adult” includes “[p]hysical abuse.” (Welf. & Inst. Code, Section 15610.07, subd. (a).) “Physical abuse” includes assault and battery. (Welf. & Inst. Code Section 15610.63, subds. (a)-(b).) Here, the FAC alleges that Defendant Naverrete entered Plaintiff’s room after Plaintiff called for help to change his soiled underwear and, instead of helping Plaintiff, punched Plaintiff in the face and arm, causing Plaintiff to bleed from the mouth, nose, and left arm. (First Amended Complaint, p. 4, paragraph 3.) This allegation is sufficient to constitute physical abuse.

Plaintiff has alleged that Naverrete was employed by Defendant Brookhurst. (First Amended Complaint, p. 5, paragraph 2.) “Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible.” (Purton v. Marriott Int’l, Inc., supra, 218 Cal.App.4th at 507 [internal quotes omitted].) Because Naverrete’s alleged wrongful acts occurred on the job while he was responding to Plaintiff’s request for help, it can reasonably be inferred that the acts were committed within the scope of his employment.

With respect to Defendants’ argument that ratification by Brookhurst must be alleged to state a cause of action for elder abuse, this issue concerns whether Plaintiff may recover certain enhanced, statutory remedies—not whether Plaintiff may prevail on an elder abuse cause of action. Nothing precludes Plaintiff from obtaining other remedies for Defendants’ alleged abuse, even in the absence of conduct sufficient to support those enhanced remedies. (CACI 3103 [Neglect – Essential Factual Elements], 3104 [Neglect – Enhanced Remedies Sought], VF-3103, VF-3014.) A demurrer may not be sustained to a cause of action on the grounds that the plaintiff has not adequately alleged a right to a remedy sought. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal. App. 4th 365, 384-385.) Therefore, the demurrer cannot be sustained on this ground. The issue of enhanced remedies, however, is addressed in the discussion of Defendants’ motion to strike, below.

The demurrer to the second cause of action for negligence is sustained with leave to amend.

“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.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal. App. 4th 1133, 1139.)

Here, Defendants correctly point out that there are no facts alleged showing that Brookhurst knew or should have known about Naverrete’s violent behavior prior to Naverrete punching Plaintiff. Although Plaintiff argues that the First Amended Complaint alleges Brookhurst ratified Naverrete’s conduct when it failed to discipline him, an employer’s subsequent ratification of wrongful conduct does not establish the employer’s prior knowledge of such behavior.

The demurrer to the third cause of action for premises liability is sustained with leave to amend.

“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.)

Although Defendants contend that there is no allegation that Brookhurst is the owner of the premises to support a cause of action for premises liability, Plaintiff correctly points out that an occupier of land also has a duty “to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises.” (Forrand v. Foodmaker, Inc. (1986) 182 Cal.App.3d 196, 201.) Here, the First Amended Complaint alleges that Brookhurst occupies the premises for the purpose of operating its nursing home. (First Amended Complaint, p. 6.)

Nonetheless, this cause of action fails for the same reason as the second cause of action—failure to allege facts showing that Brookhurst knew or should have known of Naverrete’s violent behavior.

The demurrer to the fourth cause of action for intentional tort is sustained with leave to amend.

As discussed above regarding the first cause of action, Plaintiff has alleged facts showing Naverrete assaulted and battered Plaintiff. These facts support a cause of action for intentional tort (assault and battery) against Naverrete.

With respect to Brookhurst, “[a]n employer may be liable for an employee’s willful and malicious actions under principles of ratification. An employee’s actions may be ratified after the fact by the employer’s voluntary election to adopt the employee’s conduct by, in essence, treating the conduct as its own. The failure to discharge an employee after knowledge of his or her wrongful acts may be evidence supporting ratification.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 810 [internal citations omitted].) Plaintiff has alleged facts to support ratification in its second cause of action. (First Amended Complaint, p. 5, paragraph 2.) However, the fourth cause of action is not specifically alleged against Brookhurst and the allegations of ratification are not re-pled. For this reason, the demurrer is sustained with leave to amend.

Motion to Strike

As Plaintiff notes, there is no request for attorney fees in the prayer. Accordingly, Defendants’ motion to strike any request for attorney fees is MOOT.

As for the allegations relating to punitive damages, Plaintiff has alleged facts sufficient to show oppression or malice on the part of Defendants.

Punitive damages may be recovered in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of fraud, oppression or malice. (Civ. Code, Section 3294, subd. (a).)

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, Section 3294, subd. (c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, Section 3294, subd. (c)(2).) “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal. App. 4th 702, 715.)

Here, the First Amended Complaint alleges that Naverrete punched Plaintiff and that Brookhurst ratified its employee’s conduct by failing to discipline Naverrete. Although minimal, these allegations are factual, as opposed to mere conclusions of law. They appear sufficient, if proven, to support a conclusion that Naverrete intended to cause the injuries that Plaintiff sustained and that Brookhurst ratified such conduct in conscious disregard of Plaintiff’s rights.

Moving Party to serve notice of ruling.