Divis v. Shasta Area Safety Communications Agency, et al.

CASE NUMBER: 26CV-0210924 Tentative Ruling on Demurrer: Defendants Shasta Area Safety Communications Agency aka Shascom-911 (“Shascom”) and Jessica Larmour demur to the Fifth Cause of Action alleged in the Complaint filed by Plaintiff James Divis. Plaintiff opposes the Demurrer. 2

Meet and Confer. Defendant has provided evidence of sufficient efforts to meet and confer prior to filing the Demurrer.

Merits. A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. A demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). The Court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.

App. 4th 435, 438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.

The Fifth Cause of Action is for negligent supervision and is alleged only against Defendant Shascom. Defendant demurs to the Fifth Cause of Action on the basis that Plaintiff has failed to state a claim against Shascom. Shascom is a public entity.

Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person. Gov. Code § 815

(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Gov. Code § 815.2

Negligent supervision is a common law tort claim. Plaintiff argues that C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal. 4th 861 holds that the negligent supervision claim alleged here is not barred by Gov. Code §§ 815 and 815.2. However, C.A. presents an exception, not the rule, as that case dealt with a student suing a school district for negligent supervision. In finding that liability could attach notwithstanding §§ 815 and 815.2, the supreme court found a special relationship that gave rise to duty. The court further held that “Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention, or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” Id. at p. 877.

There has been no case law presented here that would lead to a finding of a special relationship based on the factual allegations in this case. In each of the cases cited for special relationship, there was some sort of custody or caretaking type relationship. Plaintiff is an adult who is the former employee of Shascom.

Plaintiff further argues that Labor Code §§ 1050 and 1052 form the statutory basis for the negligent supervision claim since those sections impose direct liability against the employer.

Any person, or agent or officer thereof, who, after having discharged an employee from the service 3

of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor. Lab. Code § 1050.

Any person who knowingly causes, suffers, or permits an agent, superintendent, manager, or employee in his employ to commit a violation of sections 1050 and 1051, or who fails to take all reasonable steps within his power to prevent such violation is guilty of a misdemeanor. Lab. Code § 1052

The Court notes that the First and Second Causes of Action already allege violations of Labor Code §§ 1050 and 1052, respectively, against both Jessica Larmour and Shascom. Defendant argues the Fifth Cause of Action is not pled as relying on either Labor Code § 1050 or § 1052. This is correct. While paragraph 106 of the complaint realleges and incorporates preceding allegations, the allegations of the Fifth Cause of Action do not reference or in any way make it apparent that Labor Code §§ 1050 and 1052 form the statutory basis for the Fifth Cause of Action.

The Court finds that, as currently pled, Plaintiff has failed to state a claim for negligent supervision as alleged in the Fifth Cause of Action. Therefore, the Court will sustain the demurrer. Plaintiff has requested leave to amend. While Defendant has requested that leave to amend be denied, the Court is inclined to allow Plaintiff the opportunity to correct the deficiency, if he can.

The Demurrer to the Fifth Cause of Action is SUSTAINED with leave to amend. Plaintiff is given 15 days from the date of the notice of entry of order to file a first amended complaint. Defendant did not provide a proposed Order as required by Local Rule of Court 5.17(D). Defendant is to prepare the Order.

IN RE: GEBRESILASSIE