Case Number: 19STCV37976 Hearing Date: February 28, 2020 Dept: BCD

TENTATIVE RULING

Calendar: 9

Date: 2/28/20

Case No: 19 STCV37976 Trial Date: None Set

Case Name: Southwest Regional Council of Carpenters, et al. v. S3 Builders, Inc., et al.

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Defendants S3 Builders, Inc. and David Slagle

Responding Party: Plaintiffs Southwest Regional Council of Carpenters and Jason Green

RELIEF REQUESTED:

Sustain demurrer to first, second, fourth, fifth and sixth cause of action of First Amended Complaint

CAUSES OF ACTION: from First Amended Complaint

1) Battery

2) Assault

3) Premises Liability

4) Violation of Civil Code Section 51.7

5) Violation of Civil Rights Act Section 52.1

6) Unfair Business Practices

SUMMARY OF FACTS:

Plaintiff Southwest Regional Council of Carpenters (“SWRCC”), a labor organization, and its employee, Jason Green, allege that while the SWRCC was conducting a picket in front of the building located at 611 North Brand Boulevard in Glendale, owned by defendant Onni Brand Limited Partnership, in which plaintiff Green was participating, and while Green and another business agent of the SWRCC were returning to the picket line, a pickup truck with the logo of defendant S3 Builder’s Inc. (“S3”), driven by defendant David Slagle, pulled up next to them, and the driver pulled down the window and began making offensive and confrontational comments concerning union members. The driver then put the vehicle in reverse and then drove forward in the direction of Green, striking Green, and knocking him to the ground. Plaintiffs allege that Slagle did not stop the truck to check on Green, but drove in the wrong direction, started going in circles in the parking lot, and increased its speed. Plaintiffs allege that Slagle suffered severe injury as a result of the accident, including a labral tear in one of his shoulders.

It is also alleged that at the time of the incident, defendant S3 was doing tenant improvement work on a floor or floors other than the floors on which the contractor which was the subject of the picket was working, and that at the time Slagle was acting within the course and scope of his employment or agency for S3. It is also alleged that the incident did not cause Onni Brand to stop using the services of S3, and that S3 took no employment action against Slagle for the incident and has not conducted an independent investigation but is now providing Slagle’s defense in this matter.

Defendant Onni Brand Limited Partnership has brought a cross-complaint for equitable indemnity, apportionment and contribution, and declaratory relief against its co-defendants, S3 Builders and David Slagle.

Moving defendants filed a demurrer to the original complaint, which was rendered moot by the filing of the First Amended Complaint.

ANALYSIS:

First Cause of Action—Battery, Second Cause of Action—Assault, Fourth Cause of Action—Violation of Civil Code Section 51,7 and Fifth Cause of Action—Violation of Civil Rights Act Section 52.1

Defendant S3 argues that these causes of action are not sufficiently stated against S3, as the facts alleged are insufficient to support the contention that any of Slagle’s actions were within the scope of his employment with S3.

Under Civil Code section 2338:
“Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.”

Defendant relies on Lisa M. v. Henry Mayo Newhali Memorial Hospital (1995) 12 Cal.4th 291, in which plaintiff had been injured in a fall and sought treatment at a hospital, where, under the pretense of conducting an ultrasound, a technician sexually molested her. The trial court granted summary judgment in favor of the hospital, and the Second District reversed. The California Supreme Court on appeal addressed the question of whether the hospital, “even if not negligent in employing or supervising the technician, may be held vicariously liable for his misconduct under the doctrine of respondeat superior.” Lisa M., at 294.

The Court found that vicarious liability for the battery could not be imposed on the hospital in the case before it, holding:

“[A] sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Here the opposite was true: a technician simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work. Tripoli’s job was to perform a diagnostic examination and record the results. The task provided no occasion for a work- related dispute or any other work-related emotional involvement with the patient. The technician’s decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible. “If . . . the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.” (Lyon v. Carey (D.C. Cir. 1976) 533 F.2d 649, 655 [174 App.D.C. 422].)

Our conclusion does not rest on mechanical application of a motivation-to-serve test for intentional torts, which would bar vicarious liability for virtually all sexual misconduct. (See ante, p. 297.) 5 Tripoli’s criminal actions were, of course, unauthorized by Hospital and were not motivated by any desire to serve Hospital’s interests. Beyond that, however, his motivating emotions were not causally attributable to his employment. The flaw in [*302] plaintiff’s case for Hospital’s respondeat superior liability is not so much that Tripoli’s actions were personally motivated, but that those personal motivations were not generated by or an outgrowth of workplace responsibilities, conditions or events.”

Lisa M., at 301-302.

Plaintiffs in opposition argue that the type of causal connection defendant relies upon ordinarily is a question of fact. It does appear that the issue was determined as a matter of law in Lisa M. only because neither party, on a motion for summary judgment, had pointed to factual disputes. The Court in Lisa M. observed:

“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.’ ” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 213.) Neither plaintiff nor Hospital has pointed to factual disputes that would prevent us in this case from deciding the applicability of respondeat superior as a matter of law.

Lisa M., at 299.

Plaintiffs rely on case law in which the California Supreme Court recognized that respondeat superior liability can be recognized where assault and battery occurred at a construction worksite, even if the conduct did not further the employer’s interests, or the worker did not intend to further such interests. See Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 654:

“It is settled that an employer is liable for willful and malicious torts of his employee committed in the scope of the employment….

Defendant contends that Enloe was not acting in the scope of his employment when he injured plaintiff, on the grounds that the throwing of the hammer did not further defendant’s interests as an employer and that Enloe could not have intended by his conduct to further such interests. It is sufficient, however, if the injury resulted from a dispute arising out of the employment. Under the provisions of section 2338 of the Civil Code a principal is liable for “wrongful acts” of his agents committed “in and as a part of” the principal’s business. “It is not necessary that the assault should have been made ‘as a means, or for the purpose of performing the work he (the employee) was employed to do.’ ”

(Emphasis added, citations omitted.)

Plaintiff argues that the facts alleged would support a reasonable inference that the injury here resulted in a dispute arising out of Slagle’s employment. The pleading here clearly alleges that Slagle was within the scope of his employment at the time, and additional facts are alleged to support such a claim, including that Slagle was driving a truck with the company logo, wearing a shirt with a company logo, entering an area where S3 was performing tenant improvement work, and exhibiting behavior suggesting that his animosity toward Green was connected to Green’s position as a “union” worker, as opposed to having a “real job” that Slagle referenced. [FAC ¶¶ 17-26]. The circumstances alleged here suggest that the picketing may have been interfering with the ability of S3 and its workers to perform its work, so that the dispute may be reasonably inferred to have escalated from a dispute related to Slagle’s employment. [FAC ¶¶ 24, 34, 35]. These allegations are sufficient to withstand demurrer, and the demurrer is overruled.

Moreover, it is alleged that S3 ratified the conduct of Slagle after the fact, as the FAC alleges:

“Upon information and belief, S3 took no employment action against Slagle for the incident, has not conducted an independent investigation of the incident, and is now providing for Slagle’s defense in this case. S3 has therefore ratified Slagle’s conduct.”

[FAC ¶ 36].

Plaintiffs cite to Baptist v. Robinson (2006) 143 Cal.App.4th 151, in which it was noted:

“As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal. App. 3d 513, 519 [231 Cal. Rptr. 715]; Civ. Code, § 2339.) The failure to discharge an employee who has committed misconduct may be evidence of ratification. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 [77 Cal. Rptr. 2d 12].) The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. (McChristian v. Popkin (1946) 75 Cal. App. 2d 249 [171 P.2d 85]; Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th 833.)”

Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170.

Sufficient facts have been alleged here, and the demurrer is overruled.

Sixth Cause of Action—Unfair Business Practices

Both defendants, S3 and Slagle, argue that this cause of action is not sufficiently stated.

To state a cause of action for Unfair Business Practices, a plaintiff must allege the following elements:

1) Defendant has engaged in an unlawful, unfair, or fraudulent transaction, including unfair, deceptive, untrue or misleading advertising

2) Plaintiff’s right to restitution, if any. Damages are not recoverable.

3) Plaintiff’s right to injunctive relief, if any.

Bus. & Prof. Code § 17200 et seq.; Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758.

Defendants argue that the facts do not suggest that S3 or Slagle are the competitors or customers of plaintiffs.

However, as pointed out in the opposition, there is no requirement that a party plead such a customer or competitor relationship, as under Business & Professions Code § 17204:

“Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or any district attorney…or upon the complaint of any board, officer, person, corporation or association or by any person who has suffered injury in fact and has lost money or property as a result of such unfair competition.”

(Emphasis added).

Defendants also argue that the FAC does not sufficiently factually allege the unlawful conduct of using violence to suppress the rights of plaintiff. [FAC ¶ 69]. It is generally held that in connection with unfair business practices claims, pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation, including the particular section of the statutory scheme violated and the particular facts showing that the statute was violated. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.

The FAC alleges the unlawful conduct of the assault and battery in some detail. These allegations are incorporated into and form the basis for the unfair business practices cause of action, and include the statutory violations alleged in the fourth and fifth causes of action. [FAC ¶¶ 67-70]. The cause of action is alleged with sufficient factual detail, and the demurrer is overruled.

RULING:

Defendants S3 Builders, Inc. and David Slagles’ Demurrer to First Amended Complaint is OVERRULED.

Ten days to answer.

Counsel for defendants is cautioned that the California Rules of Court strictly prohibit the citation in papers of unpublished opinions in circumstances such as those here. See CRC Rule 8.1115 (“an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”). Further violation of the court rules may result in nonconforming papers not being considered by the court.