R O vs Raul Ivan Chapa et al

Case Number

23CV05386

Case Type

Hearing Date / Time

Mon, 10/21/2024 - 10:00

Nature of Proceedings

Demurrer on 8th COA on FAC

Tentative Ruling

R.O. v. Raul Ivan Chapa, et al.                               

Case No. 23CV05386        

Hearing Date: October 21, 2024                                                         

HEARING:              Defendant The Vons Companies, Inc.’s, Demurrer To The Eighth Cause Of Action For Negligent Hiring, Retention and Supervision Asserted In The First Amended Complaint

ATTORNEYS:        For Plaintiff R.O.: Ron Bamieh, Danielle De Smeth, Charlotte E. Krem, Bamieh & De Smeth, PLC

                             For Defendants The Vons Companies, Inc., and Raul Ivan Chapa: John N. Dahlberg, William F. Murphy, Dillingham & Murphy, LLP

TENTATIVE RULING:

The demurrer of defendant the Vons Companies, Inc., to the cause of action for negligent hiring, retention, and supervision alleged in plaintiff’s first amended complaint is sustained with leave to amend. Plaintiff shall file and serve a second amended complaint, if any, on or before November 5, 2024.

Background:

On April 23, 2024, plaintiff R.O. filed her operative first amended complaint (the FAC) in this action against defendants Albertsons Companies (Albertsons), Vons Companies, Inc. (Vons), and Raul Ivan Chapa (Chapa) (collectively, defendants) alleging seven causes of action: (1) sexual battery (against Chapa); (2) stalking (against Chapa); (3) assault (against Chapa); (4) battery (against Chapa); (5) intentional infliction of emotional distress (against all defendants); (6) sexual harassment in violation of Civil Code section 51 et seq. (against all defendants); (7) negligent hiring, retention, and supervision (against Albertsons and Vons). As alleged in the FAC:

On January 3, 2022, plaintiff was working as an employee of Pacific Edge Wine & Spirits (Pacific Edge) when she made a routine account call to check product inventory at a grocery store in Montecito, California (the Vons store) which is owned and operated by Albertsons and Vons. (FAC, ¶¶ 12-13.) Instead of meeting with Justin Petlow (Petlow), who was plaintiff’s normal contact at the Vons store, plaintiff was directed to meet with Chapa. (Id. at ¶ 13.)

Chapa told plaintiff that he had some questions about products and directed her to a locked liquor case. (FAC, ¶ 14.) Once plaintiff was shielded from the view of others, Chapa pushed plaintiff against the liquor case three times, pinning plaintiff with his hips while rubbing his groin area against plaintiff before releasing her. (Id. at ¶¶ 15-19.) After plaintiff was able to step away from Chapa, Chapa told her to join him to check inventory in the stock room. (Id. at ¶ 19.) Chapa had previously told plaintiff that the door to the stock room was broken and they could get locked in. (Ibid.) Plaintiff said she was leaving. (Ibid.)

On her way out of the Vons store, plaintiff stopped at the self-checkout when she felt someone’s breath in her ear. (FAC, ¶ 20.) Plaintiff turned to see it was Chapa who was standing close to plaintiff and who had followed plaintiff to the front of the Vons store to ask her to join him in the back room. (Ibid.) After leaving the Vons store, plaintiff reported the incident to Petlow and her supervisor. (Id. at ¶¶ 21-22.) Petlow informed plaintiff that Chapa’s behavior constituted sexual harassment and that Petlow would report the behavior to his executive team. (Id. at ¶ 22.)

On May 26, 2022, plaintiff was conducting work at State Street Beverages (SSB) when plaintiff saw Chapa enter the SSB store. (FAC, ¶ 27.) Security footage outside SSB indicated that Chapa had follow plaintiff as she approached SSB. (Id. at ¶28.) Once inside the SSB store, Chapa did not purchase any goods and after leaving, stood outside for one hour seemingly waiting for plaintiff to come out. (Id. at ¶ 29.) Plaintiff called the police who took statements from plaintiff and Chapa, and filed reports for both incidents. (Id. at ¶ 30.) The police officer informed plaintiff that Chapa was still employed at the Vons store. (Ibid.)

On June 3, 2024, plaintiff filed a request for dismissal, without prejudice, of all causes of action alleged in the FAC as to Albertsons.

On August 12, 2024, Vons filed a demurrer to the cause of action for negligent hiring, retention, and supervision alleged in the FAC on the grounds that plaintiff has failed to allege facts sufficient to constitute a cause of action. The demurrer is opposed by plaintiff.

On September 6, 2024, Chapa filed an answer to the FAC generally denying its allegations and asserting twelve affirmative defenses.

Analysis:

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) The demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

As a preliminary matter, the Court notes that the cause of action for negligent hiring, retention, and supervision alleged in the FAC appears to be mislabeled as the eighth cause of action. The cause of action for negligent hiring, retention, and supervision is the seventh cause of action alleged in the FAC.

In the demurrer, Vons contends that plaintiff has failed to allege any facts showing that Vons knew or should have known that Chapa was unfit prior to the alleged assault on January 2, 2024, and facts connecting the events of May 26, 2022, to Chapa’s employment or fitness for employment with Vons. For these reasons, Vons contends, plaintiff has failed to state facts sufficient to constitute a cause of action for negligent hiring, retention, and supervision of Chapa by Vons.

“[A] cause of action for negligent hiring, retention, or supervision seeks to impose liability on the employer, not the employee.” (Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co. (2018) 5 Cal.5th 216, 222 (Liberty Surplus); see also Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [liability for negligent supervision or retention is direct and not vicarious].) Liability of an employer for negligent hiring, supervision, or retention of an employee “is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) The negligence in hiring, supervising, or retaining an employee must also be a substantial factor in causing the alleged harm. (Liberty Surplus, supra, 5 Cal.5th at pp. 223-224; Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861 [discussion of substantial factor test].)

Here, the parties do not and cannot reasonably dispute that plaintiff has alleged facts sufficient to show that Chapa was an employee of Vons at the time each of the assaults alleged in the FAC occurred. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591 (Lopez) [general discussion of elements of claim].)

With respect to the alleged assault that occurred at the Vons store on January 3, 2022, wholly absent from the FAC are any allegations sufficient to show that Chapa engaged in any misconduct before the assault occurred, or that Vons knew or should have known that Chapa was unfit in some manner, had a propensity to commit the type of assault alleged in the FAC, that the hiring or retaining of Chapa by Vons created a particular risk of harm of the same general type as that alleged in the FAC, or that Chapa exhibited “characteristics which might pose a danger to customers or other employees” of Vons. (Lopez, supra, 246 Cal.App.4th at p. 591; Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339 (Mendoza).) Plaintiff also fails to allege any facts showing that, prior to the January 3, 2022, incident, Vons had a duty, or failed to, investigate or use reasonable care when investigating Chapa. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843; see also Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 384 (Flores) [finding of no duty by employer to investigate employee].)

In addition, and notwithstanding whether or not plaintiff has sufficiently alleged facts showing that Vons knew or had reason to know that an assault occurred on January 3, 2022, wholly absent from the FAC are any allegations sufficient to show that the incident which occurred over four months later on May 26, 2022, outside of the Vons store, was foreseeable or closely connected to the January 3, 2022, incident. (Mendoza, supra, 66 Cal.App.4th at p. 1339 [general discussion of factors that give rise to a duty to owed to a plaintiff]; see also Flores, supra, 161 Cal.App.4th at p. 384 [existence and scope of duty is determined in part by foreseeability of harm].) The allegations of the FAC are also insufficient to show that any failure by Vons to discharge Chapa from its employment following the January 3, 2022, assault was a substantial factor in causing an assault at a different location outside of Chapa’s place of employment. There are also no facts alleged in the FAC showing that Chapa’s contact with plaintiff at the SSB store on May 26, 2022, was generated by any employment related relationship between plaintiff and Chapa. (Mendoza, supra, 66 Cal.App.4th at pp. 1339-1340.) Therefore, and for all reasons discussed above, plaintiff has failed to allege facts sufficient to show that any negligence by Vons was a substantial factor in causing the May 26, 2022, assault. (Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1084 [“where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact”].)

In the opposition to the demurrer, plaintiff contends that the Court may reasonably infer from the allegations of the FAC that Vons failed to properly train or supervise Chapa. For example, plaintiff contends that the Court may infer from the allegation that Petlow did not “seem” surprised when plaintiff notified Petlow of Chapa’s conduct, that Vons was negligent and that Vons’ negligence contributed to or permitted the January 3, 2022, incident to occur. Plaintiff also contends that, based on what plaintiff characterizes as a brazen and bold assault by Chapa, that Chapa may have acted in this manner on previous occasions and that there may exist prior complaints against Chapa, as well as evidence that Vons failed to properly investigate Chapa prior to hiring him.

Plaintiff also contends that, had Vons responded to Chapa’s conduct by reprimanding or firing Chapa or involving law enforcement, Chapa would have been less likely to stalk or assault plaintiff on May 26, 2022. Plaintiff argues that Vons’ failure to take steps to address Chapa’s misconduct or to fire Chapa emboldened Chapa to continue his assault and harassment of plaintiff.

Though for present purposes, the Court accepts as true facts which may be inferred from those expressly alleged, an inference “is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) For all reasons discussed above, plaintiff has failed to allege sufficient facts from which the Court may reasonably draw the inferences asserted by plaintiff. In addition, the facts alleged in the FAC with respect to Vons’ knowledge and the purported reason for the assault which occurred on May 26, 2022, are too conclusory and speculative to permit the Court to reasonably draw an inference that Vons knew or had reason to know that hiring Chapa would create a particular risk of harm, or that any negligence by Vons in retaining or supervising Chapa was a substantial factor in causing the May 26, 2022, assault.

Because plaintiff has, for all reasons discussed above, failed to allege facts sufficient to constitute a cause of action for negligent hiring, supervision, or retention of Chapa by Vons, the Court will sustain the demurrer. Though the FAC is not plaintiff’s original complaint, it is, for present purposes an original pleading which does not show, on its face, that it is incapable of amendment. Therefore, the Court will grant plaintiff leave to amend the seventh cause of action, mislabeled as the eighth cause of action, for negligent hiring, retention, and supervision alleged in the FAC. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.)