Case Number: BC634765 Hearing Date: March 22, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Jessica ramirez, et al.,

Plaintiffs,

vs.

ghp management, inc., et al.,

Defendants.

Case No.:

BC 634765

Hearing Date:

March 22, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT BRS ROOFING, INC.’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT AS TO THE ALLEGED CAUSES OF ACTION FOR NEGLIGENT SUPERVISION (SECOND); NEGLIGENCE PER SE (SIXTH); BREACH OF COVENANT OF QUIET ENJOYMENT (SEVENTH); AND NEGLIGENT HIRING (EIGHTH)

Background

Plaintiffs Jessica Ramirez, Albert Stuart Bevans, Aliyah Frazier, Jasmin Frazier, Albert Bevans, and Janae Bevans (collectively, “Plaintiffs”) filed the instant action on September 21, 2016. The operative First Amended Complaint (“FAC”) was filed on January 12, 2017. The gravamen of the FAC is that Plaintiffs, 2 adults and 4 minor children, were injured as a result of a roof collapse that occurred in their home, a rental unit. In November 2014, Defendant BRS Roofing, Inc. (“BRS”) was hired to perform repairs to the roof of Plaintiffs’ unit. (FAC, ¶ 19.) On or about January 10, 2015, water began leaking through Plaintiffs’ ceiling. (FAC, ¶ 20.) On January 12, 2015, a large portion of the ceiling caved in, landing on Plaintiffs. (FAC, ¶ 24.)

BRS now demurs to the second (negligent supervision), sixth (negligence per se), seventh (breach of implied covenant of quiet enjoyment), and eighth (negligent hiring) causes of action in the FAC on the grounds that they fail to state facts to constitute a cause of action and on the ground of uncertainty. BRS submits a declaration in support of its counsel’s efforts to meet and confer with Plaintiffs’ counsel prior to the filing of the demurrer. Plaintiffs’ counsel did not substantively respond to these attempts. (Orosz Decl., ¶¶ 7-11.) No opposition to the demurrer was filed.

Request for Judicial Notice

BRS’ Request for Judicial Notice as to Exhibit A (the FAC) is granted.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

BRS contends that the negligent hiring and negligent supervision causes of action asserted against BRS are duplicative of the negligence cause of action. A demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery.” ((Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501); ((see Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) As part of their negligence claim, Plaintiffs allege that BRS breached its duty to Plaintiffs by failing to “exercise reasonable care and diligence in performing the necessary tasks of inspection and repair of THE RENTAL UNIT, by failing to perform the necessary tasks of inspection and repair in a timely manner, or by performing said inspections and repairs in a negligence, careless, incompetent and/or incomplete manner.” (FAC, ¶ 37.) The Court notes that Plaintiffs do not distinguish among the various defendants in making their allegations, so the Court applies the allegations that most reasonably would apply to BRS. As part of the negligent supervision cause of action, Plaintiffs allege that BRS (again, the FAC does not distinguish among the various defendants) breached its duty of care to supervise and manage the conduct of its employees “[t]o ensure that roofing debris and ceiling debris did not fall into the RENTAL UNIT” and “[t]o perform work with that reasonable degree of knowledge and skill that is ordinarily possessed and exercised by other licensed roofers in the same or similar locality, in similar circumstances.” (FAC, ¶ 50(O) and (P).) As part of the negligent hiring cause of action, Plaintiffs allege that BRS (again, the FAC does not distinguish among the various defendants) breached its duty of care to supervise and manage the conduct of its employees “[t]o ensure that said individuals took reasonable steps to prevent and inhibit further water intrusion” and “[t]o ensure that said individuals conducted themselves professionally and performed required services in a workmanlike manner, utilizing proper and acceptable techniques, in accordance with industry standards.” (FAC, ¶ 87(c) and (f).)

The Court finds that the negligent hiring and the negligent supervision causes of action are duplicative and also that they fail to state a claim. There is no fact alleged in the negligent hiring cause of action that differentiates it from the negligent supervision cause of action. Furthermore, both causes of action fail to allege required elements of the claims. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” ((Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.) Similarly, “[n]egligence 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.) None of those facts are alleged in the FAC. There are no facts that any employee of BRS engaged in any misconduct. There are no facts that BRS knew or should have known that any of its employees had a propensity to engage in any misconduct. Finally, there are no facts that any misconduct by an employee of BRS caused Plaintiffs’ harm. Therefore, the demurrers to the second and eighth causes of action are sustained with leave to amend.

With regard to the sixth cause of action, the Court finds that though negligence per se is not a separate cause of action, it is a separate theory of liability upon which recovery may be based. ((See, e.g., Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1086-1087 [“As an alternative theory of liability, plaintiff charged defendants with negligence per se arising from breach of their statutory duty…”].)

For negligence per se to create an evidentiary presumption of negligence, (1) a defendant must have violated a statute, ordinance, or regulation; (2) the violation must have proximately caused injury to a person or property; (3) the injury must have resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the injury must be within the class of persons for whose protection the statute, ordinance, or regulation was adopted. ((Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555, citing Evid. Code, § 669.) BRS, as a licensed roofer and not the lessor of the building, could not have violated Civil Code section 1941, as alleged in the FAC. (FAC, ¶ 80; (Civ. Code, § 1941 [“The lessor of a building intended for the occupation of human beings must…put it into a condition fit for such occupation….”].) Therefore, the demurrer to the sixth cause of action as to BRS is sustained without leave to amend.

Finally, the seventh cause of action alleges that the “acts, omissions and conduct of Defendants as aforealleged, have substantially affected Plaintiff’s enjoyment of a material part of the RENTAL UNIT.” (FAC, ¶ 84.) Again, BRS, as a licensed roofer and not the lessor of Plaintiffs’ rental unit, is not bound by the implied covenant of quiet enjoyment. ((See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 [“…every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises.”].) Therefore, the demurrer to the seventh cause of action as to BRS is sustained without leave to amend.

Conclusion

For the foregoing reasons, BRS’ demurrer is sustained without leave to amend BRS has 20 days from the date of this Order to file and serve its answer. The Court sets a case management conference on May 28, 2018 at 8:30 a.m. in this Dept. 50.

BRS is ordered to provide notice of this Order.

DATED: March 22, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court