DEMURRER ON 2ND AMENDED COMPLAINT
1. CASE # CASE NAME HEARING NAME MOTION TO COMPEL BELLO VS RIVERSIDE DEPOSITIONS OF PLAINTIFF JUDY CVRI2400140 COMMUNITY HOSPITAL BELLO AND WITNESS/DAUGHTER KIM AUSTIN Tentative Ruling: Defendant Riverside Healthcare System’s UNOPPOSED Motion to Compel Deposition of Plaintiff and Plaintiff’s Daughter is granted. Plaintiff is ordered to comply with this ruling within 30 days.
Sanctions is awarded AGAINST Plaintiff in reasonable reduced amount of $560 (2 hours plus filing fee), payable within 30 days.
2. CASE # CASE NAME HEARING NAME DEMURRER ON 2ND AMENDED CVRI2400857 A. VS MIMMS COMPLAINT Tentative Ruling: Def, Canyon Lake Property Owners Association’s Demurrer to the 2nd Cause of Action is sustained with leave to amend within 20 days; as to the 3 rd Cause of Action, it is overruled.
Court treats the demurrer as a motion to strike, which is granted as to paragraph 52 in 3rd cause of action of the SAC, but denied as moot as to the 2nd cause of action in light of the demurrer to that cause of action being sustained.
CAUSE OF ACTION FOR NEGLIGENT ENTRUSTMENT
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” (Rest.2d of Torts, § 390; see also § 308.) In other words, negligent entrustment is a negligence theory that holds the entrustor liable for harm to a third party caused when they provide a dangerous instrumentality, such as a vehicle, firearm, or heavy equipment, to an incompetent entrustee, who is unfit to use it safely.
Liability arises not from “the relationship of the parties, but from the act of entrustment” of the instrumentality, “with permission to operate the same.” (Garza v. Tesla, Inc. 2025 Cal.Super.LEXIS 24731 *7.) “It must be noted that the common law doctrine of negligent entrustment can arise in many factual contexts, as well as employment.” (Jen- Weld, Inc. v. Sup. Ct. (2005) 131 Cal.App.4th 853, 862.) Typically, this cause of action is applied to the entrustment of motor vehicles.
The elements of negligent entrustment are: 1) the entrustee was negligent in operating the vehicle; 2) defendant was an owner of the vehicle operated by the entrustee; 3)
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defendant knew, or should have known, that the entrustee was incompetent or unfit to operate the vehicle; 4) defendant permitted the entrustee to use the vehicle; and, 5) the entrustee’s incompetence or unfitness to operate the vehicle was a substantial factor in causing harm to plaintiff. (see Jen-Weld, supra.)
CLPOA asserts that there are no allegations that it entrusted any chattel or instrumentality to Mimms that he used to harm Plaintiff. To the contrary, Plaintiff argues that negligent entrustment is not limited to a physical “chattel” like a car or a gun, but she then cites to the Restatement Second of Torts § 390, which explicitly states: “One who supplies ... a chattel ....” (emphasis added.) Plaintiff argues that CLPOA “supplied Mimms the keys to the kingdom: physical access to a controlled-entry gated community, vehicular authority on the premises, and official authority over residents”, which constitutes instrumentalities (access, authority, and a vehicle) that “enabled every aspect of Mimms’ predatory conduct.” (Oppo. p. 11:17-22.)
Notably, “access” and “authority” are not chattels. And, Plaintiff cites no authority for treating “access” and “authority” as chattels (or instrumentalities.)
Nonetheless, it is alleged that Mimms was given authority “to operate a vehicle on the premises”, which is a chattel that Mimms used as the instrument of abduction to transport Plaintiff away from the community. (SAC ¶¶ 22, 36.) The remainder of CLPOA’s arguments as to this cause of action rely on principles of negligent hiring, supervision, and retention, which involve a different negligence theory (discussed below.)
In its current form, the SAC alleges that CLPOA gave Mimms “permission to operate a vehicle on the premises” (4th element.) (SAC ¶ 36; see CACI No. 724.) However, what is missing from the SAC are allegations that Mimms was negligent in operating the vehicle (1st element); that CLPOA owned the vehicle (2nd element); that CLPOA knew or should have known Mimms was incompetent or unfit to operate the vehicle (3rd element); and, that Mimms’ incompetence or unfitness to operate the vehicle was a substantial factor in causing harm to Plaintiff (5th element.) (Jen-Weld, supra.; CACI No. 724.)
CAUSE OF ACTION FOR NEGLIGENT HIRING, SUPERVISION AND RETENTION
An employer may be directly liable to a third party for its negligence in hiring, supervising or retaining an unfit employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) The employer is liable because he knew or should have known that the employee created a particular risk or hazard, and that harm materializes. (Id.) Liability “is based upon the reasoning that if an enterprise hires 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.” (Mendoza v.
City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) Notably, the employer must have a reason to believe that an undue risk of harm will result by hiring the employee. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1566-1567.) In other words, the employer must know or should know the employee is unfit because of past conduct (e.g., conviction, propensity for violence.)
The elements of negligent hiring, supervision or retention are (1) that the employer defendant hired the alleged wrongdoer; (2) that the alleged wrongdoer was or became unfit or incompetent to perform the work for which he or she was hired; (3) that the employer knew or should have known that the alleged wrongdoer was or had become unfit or incompetent and that the unfitness or incompetence harmed the plaintiff; and (4) that the employer’s negligence in hiring, supervising, or retaining the alleged wrongdoer was a substantial factor in causing plaintiff’s harm. (CACI 426.)
CLPOA only argues that Mimms was Allied’s employee and was not employed by CLPOA. To the contrary, Plaintiff argues that the SAC does not allege only that CLPOA employed Allied, but that CLPOA (and Allied) hired and supervised Mimms directly as an agent and contractor performing services on its behalf. (see SAC ¶¶ 5, 18, 44.) Plaintiff argues that CLPOA is a principal just as Allied, and that Mimms carried out CLPOA’s activities. (Oppo. p. 18:10-12.) Under California law, “A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: ... [P] (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[.]” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836, citing Restatement 2d of Agency § 213.)
Plaintiff also argues that CLPOA had a non-delegable duty to ensure the fitness of security personnel that had access to the Canyon Lake community. Plaintiff points out that the SAC alleges that CLPOA knew or should have known of Mimms’ unfitness. (SAC ¶¶ 37, 44-48.) It also alleges that CLPOA”s negligent hiring, supervising, and/or retention of Mimms “was a direct, proximate and legal cause and substantial factor in causing Plaintiff’s harm.” (SAC ¶ 50.) Further, the SAC alleges that CLPOA directly supervised Mimms by directing and authorizing his patrol activities, and failing to prevent his actions in removing Plaintiff from the premises during his work shifts. (SAC ¶¶ 25, 47.) Thus, the elements of this cause of action are sufficient for pleading purposes.
Punitive Damages
“A motion to strike, not a general demurrer, is the procedure to attack an improper claim for punitive damages or other remedy demanded in the complaint. Reason: A general demurrer challenges only the sufficiency of the cause of action pleaded, and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action.” (Weil & Brown, CPG: Civ. Proc. Before Trial (TRG 2026) § 7:42.1 citing Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)
CLPOA has only filed a demurrer, not a motion to strike. And, CLPOA has not referenced the portions of the SAC that should purportedly be stricken.
Nonetheless, the Court treat the demurrer to punitive damages as a motion to strike, it should be granted, in part. To set forth a claim for punitive damages, Plaintiffs must allege ultimate facts showing oppression, fraud or malice. (Civil Code §3294.) Mere negligence, even gross negligence, is not sufficient to justify an award of punitive
damages. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894-895; Moody v. McDonald (1854) 4 Cal. 297, 299.) The current definitions of “malice” and “oppression” were changed by the 1987 amendments to Civil Code §3294, to incorporate “despicable conduct.” The amendments narrowed the definitions so that punitive damages will only be awarded to punish conduct that is so “vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down on and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) In addition, “[w]ith respect to a corporate employer, the advance knowledge of conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (CCP § 3294(b).)
Here, the SAC properly alleges the 3rd cause of action for negligent hiring, supervision and retention, as discussed above. However, it includes an allegation seeking punitive damages that is not supported by the negligence allegations. (SAC ¶ 52.) Thus, the Court strikes paragraph 52 of the SAC, without leave to amend. Otherwise, the punitive damages challenge as to the 2nd cause of action is moot since the demurrer is sustained.
3. CASE # CASE NAME HEARING NAME SERRATO VS GENERAL CVRI2501412 MOTION FOR ATTORNEYS FEES MOTORS, LLC Tentative Ruling: Plaintiff’s Motion for Attorney’s Fees is granted in the reasonable reduced amount of $ 22,400.50; as to costs, it is reduced to $878.70.
Attorneys’ fees may be awarded to a prevailing party as costs when authorized by contract, statute or law. (CCP § 1033.5(a)(10).) The Song Beverly Act provides, “[i]f the buyer prevails in an action under [the Song-Beverly Act], the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civil Code §1794(d).)
The trial court must make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case, including the complexity of the case, procedural demands, skill exhibited, and results achieved, the amount of actual time expended and the monetary charge being made for the time expended are reasonable. (Goglin v. BMW of North America (2016) 4 Cal. App. 5th 463, 470.) If the time expended or monetary charge is not reasonable, the court should reduce the amount. (Ibid.)
On November 4, 2025, Plaintiff accepted GM’s settlement offer, which expressly provided that Plaintiff is the prevailing party and entitled to fees and costs. Defendant does not dispute that Plaintiff is the prevailing party, but argues that the fee request is unreasonable and excessive.