Case Number: EC060266    Hearing Date: August 12, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

ROXANNA RUIZ,

Plaintiff(s),
v.

NBC UNIVERSAL, INC., et al.,

Defendant(s). Case No.: EC060266

Hearing Date: August 12, 2014

[TENTATIVE] RULING RE:
DEFENDANT UNIVERSAL CITY STUDIOS LLC’S MOTION FOR JUDGMENT ON THE PLEADINGS

For the reasons set forth below, Defendant Universal City Studios LLC’s Motion for Judgment on the Pleadings as to the second cause of action for “Negligent selection, Hiring, and Retentionof Defendants’ Employees and Agents” is GRANTED with 20 days’ leave to amend. Defendant Universal City Studios LLC’s “Objection and Motion to Strike Portions of Plaintiff’s Opposition to Motion for Judgment on the Pleadings” is OVERRULED/DENIED.

I. BACKGROUND

Plaintiff Roxanna Ruiz filed the instant action for negligence (first cause of action), and the negligent selection, hiring and retention of employees or agents (second cause of action) arising out of a slip and fall incident at Universal Studios on December 25, 2011. The operative complaint is the Second Amended Complaint (“SAC”), filed on May 20, 2013. Defendant Universal City Studios LLC (“Defendant” or “Universal City Studios”) filed the instant motion for judgment on the pleadings on June 2, 2014.

II. SUMMARY OF ARGUMENTS

Defendant Universal City Studios moves for judgment on the pleadings with respect to the second cause of action of the SAC, for failure to allege the elements of a cause of action for negligent hiring, supervision or retention of an employee. Defendant argues that the SAC fails to allege that any particular employee was unfit or incompetent and posed a risk of harm to others or that Defendant knew or should have known that the employee was unfit or incompetent. Defendant also argues that the allegations of failure to train, instruct or discipline an employee are not relevant to the cause of action.
Plaintiff opposes the motion on the grounds that she is not required at this stage to name a specific employee who is incompetent or unfit, and that discovery is ongoing. Plaintiff also responds that the “training, instructing and disciplining of an employee are part of the supervision of the employee, and thus satisfy that element of the tort. Plaintiff also argues that it is sufficient to allege that Defendant “should have known” of the unfit or incompetent employee.

III. ANALYSIS

Evidentiary Objections /Motion to Strike

Defendant Universal City Studios LLC filed an “Objection and Motion to Strike Portions of Plaintiff’s Opposition to Motion for Judgment on the Pleadings” in which it seeks to strike the discussion of the factual circumstances that gave rise to Plaintiff’s action set forth at pages 1-3 of Plaintiff’s Opposition. It is true that the Court cannot consider matters that are outside of the pleadings or of which the Court cannot take judicial notice when ruling on a motion for judgment on the pleadings, and has not considered these alleged facts in ruling on the Motion. However, the Opposition brief is not “evidence,” and therefore a Motion to Strike or the filing of Objections is not the proper procedure for addressing an Opposition. Therefore, Defendant Universal City Studios LLC’s objection / motion to strike is overruled/denied. However, the Court will not consider the asserted facts stated in the Opposition in considering the Motion for Judgment on the Pleadings.

Legal Standard

The objection that a complaint does not state facts sufficient to constitute a cause of action is generally raised at an early stage in the proceedings by a general demurrer. However, a defendant may in the alternative seek judgment on the pleadings pursuant to CCP section 438(c)(1)(B). The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, “that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321-22 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).
Second Cause of Action: Negligent Selection, Hiring or Retention

The elements of a tort for the negligent hiring, supervision or retention are: 1) employer’s hiring, supervision or retention of an employee; 2) who is incompetent or unfit; 3) employer knew or should have known that hiring or retaining the employee created “an undue risk of harm” because of the employment; and 4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1213-14.)

Plaintiff alleges that while a guest “she slipped and fell due to a liquid spill on the floor of DEFENDANTS’ premises that had been left unattended and without any posted or verbal warnings as to the presence of the dangerous condition.” (SAC ¶ 19.) For the second cause of action, Plaintiff alleges:

“At all times mentioned herein and prior thereto, DEFENDANTS and each of them had the duty to train, instruct, supervise and discipline its employees, including Does 1 through 100, and to sufficiently staff the premises for the peak holiday operating season to insure that dangerous conditions on the premises, including liquids spilled in the restaurant premises, would be timely attended to, including the provision of warnings as to the presence of such dangerous conditions, so as to minimize the risk of bodily harm to the invitees of DEFENDANTS and each of them.”

(SAC ¶ 29 (emphasis added).) Plaintiff additionally alleges that Defendants had a “duty to ensure that each staff was individually capable and collectively staffed and scheduled in such a number to safely operate the premises for the peak holiday season and the particular day on which the incident occurred.” (SAC ¶ 30.) Third, Plaintiff alleges that Defendants “failed to inquire or enforce policies and procedures in place or to establish such policies,” and to ensure that their employees “had the proper training, instruction, supervision, constitution, demeanor, personality, ability, and staffing levels to perform such duties in a safe, reasonable, and prudent manner for the peak holiday season.” (SAC ¶ 31.) Finally, Plaintiff alleges that Defendants breached these duties, thereby causing her injuries. (SAC ¶¶ 30-35.)

Nowhere does the SAC allege that an employee who caused the harm was unfit or incompetent or that Defendant knew or should have known that this employee was unfit or incompetent, and knew or should have known that this employee posed an undue risk of harm.
Defendant relies on cases involving employees with histories of criminal behavior, such that they were alleged to be unfit employees. (See e.g., Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1136 (domestic violence and/or arson offenses); Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 376 (juvenile delinquency record); Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828 (sexual molestation).) However, Defendant does not argue that there must be a criminal past, but rather, that the employee must be “incompetent or unfit,” as the case law requires. (See Phillips, 172 Cal.App.4th at 1139.) As the court held in Phillips, if the employer hired “individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Id.)

Plaintiff’s SAC alleges numerous duties owed to her by Defendants with respect to proper staffing of the premises and training, instruction, supervision and discipline of employees, which were allegedly breached. However, Plaintiff fails to cite to any cases that expand liability for this tort beyond hiring, retention and supervision to include the training, staffing and discipline of employees. Moreover, there are no facts alleged that any of Defendants’ employees were in fact unfit or incompetent as a result of “characteristics which might pose a danger to customers or other employees.” (Id.) While Plaintiff correctly notes that she need not allege the name of the specific employee who she alleges was unfit or incompetent at this time (see e.g., Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, 820), the pleading must allege that one of Defendant’s employees was incompetent or unfit, which it does not. Likewise, Plaintiff fails to allege that Defendant knew or should have known that the employee was incompetent or unfit, and that the employment posed a particularized undue risk of harm.
Based on the lack of allegations that Defendant Universal City Studios LLC hired, supervised or retained an unfit or incompetent employee, and knew or should have known the undue risk this created, the motion for judgment on the pleadings is granted.

Defendant Universal City Studios also argues that leave to amend the SAC should not be granted because the allegations can only state claims for negligence and premises liability. There is nothing inconsistent, however, between claims for premises liability and negligent hiring, retention or supervision such that they cannot be alleged in the same complaint. If the reason for the existence of the allegedly dangerous condition on the premises can be tied to the incompetence or lack of fitness of an employee, and Defendant was aware or should have been aware of the risk thereby created, Plaintiff may assert a claim for negligent hiring, retention or supervision. Therefore, the Court will allow Plaintiff leave to amend the second cause of action. The Court finds, however, that the alleged tort cannot be pled based on allegations of improper training, discipline, or staffing of employees, or adoption of appropriate policies. Rather, as discussed above, the claim must be based on the negligent hiring, supervision or retention of an incompetent or unfit employee.

CONCLUSION

Defendant Universal City Studios LLC’s Motion for Judgment on the Pleadings as to the second cause of action for negligent “selection, hiring, and retention” is GRANTED with leave to amend within 20 days of service of this order. Defendant’s Motion to Strike is DENIED and Objections OVERRULED.
Defendant Universal City Studios LLC is ordered to give notice.

DATED: August 12, 2014
_________________________
Hon. Gail Ruderman Feuer
Los Angeles Superior Court