Filed 3/12/15 Chu v. Tribal Brands CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                    DIVISION FIVE


LI CHING CHU et al.,
         Plaintiffs and Appellants,
                                                                     A141730
v.
TRIBAL BRANDS, INC., et al.,                                         (San Mateo County
                                                                     Super. Ct. No. CIV508888)
         Defendants and Respondents.


         Cindy K. Hung (Cindy) died tragically after a fall at her workplace on October 21,
2010.1 Her death was ruled a suicide by the coroner. Cindy’s parents, appellants Li
Ching Chu and Robert Ching Liang Hung (Plaintiffs), are convinced that their daughter
was murdered and the true cause of her death has been covered up by an ongoing
conspiracy. Plaintiffs’ wrongful death action, filed in 2011, has yet to proceed past the
pleading stage. At primary issue here are demurrers sustained by the trial court without
leave to amend as to several individuals and one entity substituted for Doe defendants.
We reverse as to the wrongful death claim against an alleged alter ego entity, but affirm
in all other respects.
                                               I.       BACKGROUND
         As relevant here, Plaintiffs’ fourth amended complaint asserted claims against
Tribal Technologies (Cindy’s employer), Joseph Vierra (Cindy’s supervisor), Victoria
Dinovich, Jeff Martin, Susan Pfendt, and multiple Doe defendants. The claims arise from
         1
         Consistent with appellants’ briefing on appeal, we refer to the decedent by her
first name. We intend no disrespect.


                                                             1
Cindy’s death at her workplace in October 2010. Cindy’s body was found on the rooftop
of a breezeway in the office building where she worked for Tribal Technologies. Her
death was deemed a suicide. Plaintiffs allege that Tribal Technologies employees Vierra
and Dinovich murdered Cindy with the assistance of the Doe defendants and all
defendants covered up the crime. Plaintiffs assert claims for assault, battery, intentional
infliction of emotional distress, negligence, negligent supervision and retention,
obstruction of justice, wrongful death and “vicarious liability.” We addressed this
litigation in a previous appeal brought by a defendant not involved in the instant
proceedings (Chu v. Glenborough 400 ECR, LLC (Apr. 9, 2014, A139167) [nonpub.
opn.]).
          Plaintiffs eventually identified several Doe defendants, including respondents
Tribal Brands, Alison Baal Guerrero, Allen Morgan, Ashish Chordia, Candice Yusim,
Dylan McIlhenny, and Steve Brickman. Chordia and Yusim successfully moved to quash
service of process. Tribal Brands, Guerrero, Morgan, McIlhenny, and Brickman
(Demurrer Respondents) successfully demurred and judgment was entered in their favor.
Plaintiffs appeal from the judgment.
                                       II.    DISCUSSION
A.        Orders Quashing Service
          Plaintiffs argue on appeal that the trial court erred in quashing service on Chordia
and Yusim, and that these respondents must reply on the merits. We conclude, however,
that we lack jurisdiction to review these orders because Plaintiffs failed to file a timely
appeal.2
          Orders granting motions to quash are appealable orders. (Code Civ. Proc.,
§ 904.1, subd. (a)(3).) On April 18, 2014, Chordia and Yusim served Plaintiffs with
notices of entry of the orders granting their motions to quash. Thus, the time to appeal
those orders expired 60 days later on June 17, 2014. (Cal. Rules of Court,


          2
      We provided the parties an opportunity to brief this issue, as required by
Government Code section 68081.


                                                2
rule 8.104(a)(1)(B).) Insofar as the record discloses, only a May 5, 2014 notice of appeal
from a “[j]udgment of dismissal after an order sustaining a demurrer” was filed by
Plaintiffs prior to June 17, 2014. The May 2014 notice of appeal does not state that it
seeks review of “[a]n order or judgment under Code of Civil Procedure section
904.1(a)(3)–(13).” Although Plaintiffs attached copies of the orders granting the motions
to quash to their civil case information statement, that document does not establish
appellate jurisdiction. Because the notice of appeal did not identify the appealable orders
granting the motions to quash, we lack jurisdiction to review those orders and that portion
of Plaintiffs’ appeal is dismissed. (See Sole Energy Co. v. Petrominerals Corp. (2005)
128 Cal.App.4th 212, 239–240.)
B.     Orders Sustaining Demurrers
       Plaintiffs argue the trial court erred in sustaining the Demurrer Respondents’
demurrers without leave to amend. We review an order sustaining a demurrer de novo,
exercising our independent judgment as to whether, as a matter of law, the complaint
states a cause of action on any available legal theory. (See Lazar v. Hertz Corp. (1999)
69 Cal.App.4th 1494, 1501.) In doing so, we assume the truth of all material factual
allegations together with those matters subject to judicial notice. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) If the demurrer was sustained without leave to amend, “we
must decide whether there is a reasonable possibility the plaintiff could cure the defect
with an amendment. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081.) If we find that an amendment could cure the defect, we will conclude that
the trial court abused its discretion and reverse. Plaintiffs have the burden of proving that
an amendment would cure the defect. (Ibid.)
       On September 6, 2013, Plaintiffs filed amendments to their fourth amended
complaint (Complaint), substituting Guerrero as Doe 11, Morgan as Doe 12, McIlhenny
as Doe 24, and Brickman as Doe 46.3 Tribal Brands was substituted as Doe 56 on


       3
        The September 6, 2013 amendment substituted 44 named individuals as Does 9
through 51 and 55.


                                              3
October 16, 2013. Plaintiffs did not amend to include any specific factual allegations as
to any of these new defendants. The demurrer was therefore decided based on the
sufficiency of the Doe allegations of the operative Complaint: Plaintiffs alleged that
Tribal Technologies and Does 1 through 50 operated jointly as a software developer, and
that Glenborough 400 ECR, LLC and Does 51 to 100 jointly operated an office building
where the software developer had its offices.
       The Complaint asserts the following causes of action against Doe defendants, and
the parties and trial court treated these causes of action as directed against the Demurrer
Respondents: assault, battery, intentional infliction of emotional distress, negligent
infliction of emotional distress (entitled “negligence”), negligent supervision and
retention, and wrongful death. An obstruction of justice claim is asserted against only the
operator of the office building. The “vicarious liability” claim is asserted against only
Tribal Technologies, and the parties and trial court treated this claim as directed against
only Tribal Brands, not the other Demurrer Respondents. Most of the specific allegations
of misconduct (sexual harassment and exploitation, murder, and illegal coverup of the
murder) were directed toward named individuals and Does 1 through 50, but the
Complaint also alleges that “each of the defendants was the agent . . . of each of the
remaining defendants.”
       1.     Alter Ego and Vicarious Liability of Tribal Brands
       Tribal Brands argued that the Complaint failed to allege it had engaged in any
unlawful conduct. In opposition pleadings, Plaintiffs wrote: “Tribal Brands shares the
same CEO as Tribal Technologies, namely, defendant Jeff Martin. It shares directors,
employees, office space, and funding as Tribal Technologies. It has the same address
located at 400 South El Camino Real, 8th Floor, San Mateo, California. The individual
defendants operated under either Tribal Technologies or Tribal Brands according to
whichever [wa]s convenient. Tribal Brands is merely one of the corporate veils that the
individual defendants used as window dressing for their operation of offering female
employees in exchange for business. It is the de facto corporate alter ego of defendant



                                              4
Tribal Technologies and the individual defendants.”4 Plaintiffs asked for leave to amend
their complaint as necessary to state valid claims for relief.
       In reply, Tribal Brands wrote: “Plaintiffs argue that they need not state facts
supporting a claim against Tribal Brands because Tribal Brands is the ‘alter ego’ of
Tribal Technologies. The Fourth Amended Complaint does not allege that Tribal Brands
is the alter ego of Tribal Technologies, nor does it allege any facts from which one might
infer that the two entities are alter egos of one another.” In its demurrer, Tribal Brands
argued that Plaintiffs should not be granted further leave to amend because “Plaintiffs
have already had the opportunity to amend their complaint four times and have not
materially changed their substantive allegations. Although the DOE amendment naming
Tribal Brands was filed recently, . . . Plaintiffs have had a full and fair opportunity to
amend the allegations on which their claims against all DOE defendants are based many
times over.”5
       On the merits, the trial court ruled without further explanation, “Plaintiff’s theory
that Defendant Tribal Brands is the alter ego of Tribal Tech is not persuasive.” On the
request for leave to amend, the court wrote, “The Court does not believe it is appropriate
to allow leave to amend, as Plaintiff requests. There is no question that liberality is to be
applied in allowing the amendment of pleadings. Defendant Tribal Brands is in fact
bringing its first demurrer, as it has just recently been identified as a Doe Defendant.
However, in light of the Court agreeing with Plaintiff that the amendment relates back to
the original pleading, in essence Plaintiffs have had ample opportunity to allege sufficient

       4
         Explaining their late naming of Tribal Brands as a defendant, Plaintiffs wrote
they were “genuinely ignorant of Tribal Brands’ identity and the facts of its liability when
the original complaint was filed. Tribal Technologies is a very small software start-up
with a few employees. As such its affiliates, subsidiaries and alter ego identities are not a
matter of public information. Further, Tribal Technologies and the individual defendants
orchestrated an elaborate coverup including threats and payments to various individuals
and authorities to prevent Cindy’s murder from being investigated.”
       5
        According to the record in Plaintiffs’ most recently filed appeal (Chu v. Tribal
Technologies (Mar. 6, 2015, A143749) [order of dismissal]), a fifth amended complaint
remains pending against Tribal Brands, Vierra, Dinovich and other individual defendants.


                                              5
facts against Doe #56 in any of the prior incarnations of the pleadings, yet have failed to
do so. This attack is bu[t] one of many on the 4thAC, so to suggest that there are facts
available which would cure the defects seems unreasonable.”
       The trial court erred in summarily dismissing Plaintiffs’ alter ego claim on the
merits without granting leave to amend. “The requirements for applying the ‘alter ego’
principle are thus stated: ‘ “ ‘[I]t must be made to appear that the corporation is not only
influenced and governed by that person [or other entity], but that there is such a unity of
interest and ownership that the individuality, or separateness, of such person and
corporation has ceased, and the facts are such that an adherence to the fiction of the
separate existence of the corporation would, under the particular circumstances, sanction
a fraud or promote injustice.’ ” ’ [Citations.] Among the factors to be considered in
applying the doctrine are commingling of funds and other assets of the two entities, the
holding out by one entity that it is liable for the debts of the other, identical equitable
ownership in the two entities, use of the same offices and employees, and use of one as a
mere shell or conduit for the affairs of the other. [Citation.]” (Roman Catholic
Archbishop v. Superior Court (1971) 15 Cal.App.3d 405, 411, italics omitted.) Plaintiffs
represented in opposition to the demurrers that they could allege Tribal Brands and Tribal
Technologies had the same chief executive officer, directors, employees, office space and
funding; that the individuals who ran the companies “operated under either Tribal
Technologies or Tribal Brands according to whichever [was] convenient”; and that these
two companies were only two of several “corporate veils” used to disguise the true nature
of their business—“offering female employees in exchange for business.” Tribal Brands
did not contend in its reply that any of the allegations could not be made in good faith.
       The trial court also wrote that Plaintiffs failed to establish Tribal Brands’ vicarious
(respondeat superior) liability for the alleged misconduct because they did not allege that
any Tribal Brands employees committed any misconduct. However, if in fact it is the
alter ego of Tribal Technologies, Tribal Brands would share Tribal Technologies’
liability for the acts of its employees within the course and scope of their employment.
The fourth amended complaint alleges that certain Tribal Technologies employees


                                               6
harassed and murdered Cindy in circumstances that were alleged to be within the course
and scope of their employment: Plaintiffs allege that, as part of the company’s “business
model,” Tribal Technologies supervisors pressured female employees to provide sexual
favors to clients and compete against each other in doing so,6 and Tribal Technologies
knew about and condoned supervisor Vierra’s use of violence and murder to advance this
program. Tribal Brands does not argue that the allegations are insufficient to establish
Tribal Technologies’ vicarious liability, which in turn would establish Tribal Brands’
liability as Tribal Technologies’ alter ego. “Vicarious liability,” however, is not a cause
of action but a basis for imposing liability on one entity for the acts of others. We discuss
post which causes of action should be reinstated on the basis of Tribal Brands’ alter ego
and vicarious liability.
       On the denial of leave to amend, the trial court wrote that Plaintiffs had “ample
opportunity to allege sufficient facts against [Tribal Brands] in any of the prior
incarnations of the pleadings, yet have failed to do so.” However, the court failed to
address Plaintiffs’ representation, undisputed by Tribal Brands, that they had just recently
learned of Tribal Brands’ close connection with Tribal Technologies. To the extent the
court denied leave to amend based on deficiencies in the underlying allegations against
Tribal Technologies, those arguments are not before us in this appeal because they were


       6
         The trial court wrote, “Plaintiff’s opposition to the demurrer states that
Defendant was actually operating as a prostitution ring, but this novel accusation in an
opposition is not set forth in the pleadings.” This is inaccurate. Under the heading, “The
Working Girls of Defendant-Employer Tribal Technologies,” Plaintiffs alleged that
Tribal Technologies’ supervisors “took advantage of their positions of power and abused
female employees. These abuses included asking for sexual favors, threatening to fire
them from their jobs if they do not accommodate[,] and murder. . . . [¶] . . . Business
practices at Tribal were such that attractive women would be hired into each of [Tribal
Technologies’ two] factions regardless of their professional qualifications, as long as they
were attractive, and are open to be used as pawns. In order to appeal to the broad and
varied tastes of their clients, each faction is staffed with women of various sizes, ethnicity
and age. They would . . . become romantically and sexually involved with Tribal’s
clients. The business that they brought in would be credited towards the respective
factions to which they belonged.”


                                              7
not raised in Tribal Brands’ demurrer. We conclude the trial court erred in denying
Plaintiffs leave to further amend their Complaint to include factual allegations which
would establish Tribal Brands’ liability as an alter ego of Tribal Technologies.
       2.       Code of Civil Procedure Section 377.34
       Demurrer Respondents argued below that the causes of action for assault and
battery failed to state valid claims because damages sought in the Complaint were barred
by Code of Civil Procedure section 377.34,7 limiting recovery to a decedent’s predeath
economic losses. The trial court ruled that not only the assault and battery claims, but
also the wrongful death claims, were barred by this statute. We conclude only the
survival causes of action were barred by the statute.
                a.     Survival Causes of Action/Noneconomic Damages
       Plaintiffs sued both in their individual capacities and as successors in interest to
Cindy, and inferably asserted each cause of action in both capacities. As successors in
interest to Cindy, Plaintiffs assert survival causes of action, i.e., causes of action that
belonged to Cindy and survived her death. (See §§ 377.20, 377.30–377.35.)
       As to survival causes of action, section 377.34 provides: “In an action or
proceeding by a decedent’s personal representative or successor in interest on the
decedent’s cause of action, the damages recoverable are limited to the loss or damage
that the decedent sustained or incurred before death, including any penalties or punitive
or exemplary damages that the decedent would have been entitled to recover had the
decedent lived, and do not include damages for pain, suffering, or disfigurement.”
(Italics added.) As aptly summarized by the trial court, “this statute limits recoverable
damages for a successor in interest to economic damages incurred prior to death.”
       The survival causes of action for assault and battery are barred by section 377.34
because they do not allege economic damages incurred by Cindy before her death. Aside
from pain, injury and death caused directly by the assault and battery, Plaintiffs alleged
that these torts resulted in funeral and burial expenses, loss of companionship, the cost of

       7
           Undesignated statutory references are to the Code of Civil Procedure.


                                               8
a forensic pathologist, loss of Cindy’s income, and resources spent to bring the instant
lawsuit—all damages incurred after Cindy’s death. Plaintiffs also alleged they incurred
“hospital, medical, professional and incidental damages,” but other allegations of the
Complaint (i.e., that the paramedics arrived too late to help Cindy) reflect that these too
were incurred after Cindy’s death. Plaintiffs do not argue otherwise on appeal. Plaintiffs
alleged that as a result of the assault and battery, “property owned and used by [Cindy]
was damaged; and [P]laintiffs, thereafter, were denied use[] of said vehicle and other
property, to Plaintiffs’ further damage.” This appears to be a reference back to an
allegation that, apparently after Cindy’s death, “defendants located Cindy[’s] car, broke
into the rear window and cleaned out all of the evidence of their crime. As a result,
[P]laintiffs were deprived of the use of this car because it is now evidence of the murder.”
The complaint does not establish a causal connection between the assault and battery and
the alleged damage to or loss of use of Cindy’s vehicle, and Plaintiffs do not argue on
appeal that any alleged property damage provides the missing predeath economic damage
element necessary to save these claims from dismissal under section 377.34. We
therefore affirm the trial court’s dismissal of the survival assault and battery claims.
       The survival claims for intentional and negligent infliction of emotional distress
are by definition barred by section 377.34 because the damages for such torts consist of
emotional suffering. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The
survival claim for negligent supervision and retention alleges Cindy suffered mental
anguish, pain and suffering, and death, all damages also barred by section 377.34. In
sum, Plaintiffs failed to state any valid survival causes of action against the Demurrer
Respondents.
               b.    Wrongful Death Cause of Action
       The trial court erred in ruling that Plaintiffs’ wrongful death cause of action failed
under section 377.34. Wrongful death is a statutory cause of action held by certain
persons for the wrongful death of another. (§ 377.60.) Those persons include, “if there is
no surviving issue of the decedent, the persons . . . who would be entitled to the property
of the decedent by intestate succession” (§ 377.60, subd. (a)), and includes parents who


                                              9
were dependent on the decedent. (§ 377.60, subd. (b); Prob. Code, § 6402, subd. (b).)
Plaintiffs are within the class of potential plaintiffs.
       In a wrongful death action, “damages may be awarded that, under all the
circumstances of the case, may be just, but may not include damages recoverable under
Section 377.34.” (§ 377.61, italics added.) The obvious intent of the latter clause is to
prevent a double recovery when both a survival action and a wrongful death action can be
maintained. As relevant here, the significant point is that section 377.34’s restrictions on
recoverable damages do not apply to wrongful death actions; on the contrary, all damages
as may be just may be awarded. The trial court, therefore, erred in ruling that
section 377.34 bars recovery under the wrongful death cause of action.
       3.      Direct Claims for Assault, Battery and Wrongful Death
       We consider whether Plaintiffs stated valid direct (as distinct from survival)
claims for assault and battery and whether their wrongful death claim fails on any other
grounds.
       Plaintiffs do not allege that any defendant committed assault or battery against
them, only that they suffered some consequential harm due to assault and battery against
Cindy. But they cite no legal authority allowing them to recover for consequential harm
resulting from assault and battery on another. Therefore, the direct claims for assault and
battery were properly dismissed.
       Tribal Brands argued that Plaintiffs failed to state a valid wrongful death claim as
to it because they alleged no conduct by Tribal Brands that contributed to Cindy’s death.
We have concluded, however, that Plaintiffs made a sufficient showing that they could
amend the Complaint to allege alter ego liability of Tribal Brands for the acts of Tribal
Technologies, and no argument is before us that the Complaint fails to allege Tribal
Technologies’ vicarious liability for the acts of its employees in causing Cindy’s death
(including their alleged acts of assault and battery that contributed to her death).8

       8
         As the only basis for liability of Tribal Brands asserted by Plaintiffs is alter ego,
Plaintiffs can pursue claims against Tribal Brands only to the extent that pleading
allegations remain viable as to Tribal Technologies.


                                               10
Accordingly, we conclude the trial court erred in dismissing the wrongful death claim
against Tribal Brands.
       As to the individual Demurrer Respondents (Guerrero, Morgan, McIlhenny, and
Brickman), Plaintiffs have alleged no facts that would establish their vicarious liability
for Vierra’s and Dinovich’s alleged assault, battery and wrongful killing of Cindy.
Plaintiffs represented in their opposition papers that Guerrero was a Tribal Brands
employee, Morgan was on the Tribal Technologies board of directors, and Brickman and
McIlhenny were managers at Tribal Technologies or Tribal Brands. Nothing in those
allegations, even if included in an amended complaint, would establish any personal acts
by these individuals that would make them liable for the assault, battery or wrongful
death of Cindy. Therefore, these claims were properly dismissed as to these respondents.
       4.     Direct Emotional Distress Claims
       Plaintiffs premise their direct claims for infliction of emotional distress on the
defendants’ alleged coverup of Cindy’s murder. They allege the defendants “lied to
investigators about Cindy being depressed[,] . . . bribed the San Mateo County Coroner
and the police[,] . . . threatened to sue the coroner if [he or she] did not do their bidding[,]
. . . [and] lied to the police . . . to deflect attention away from the real murderers and to
prevent Cindy’s murder from being investigated.” As a result of these actions, Plaintiffs
“were made to believe that their daughter committed suicide” and “Defendants ensured
that Cindy’s murder would not be investigated.”
       The trial court correctly ruled that these allegations fail to state a valid claim for
intentional infliction of emotional distress because none of the alleged conduct was
directed at Plaintiffs or knowingly committed in their presence. To be actionable,
intentional infliction of emotional distress “must be conduct directed at the plaintiff, or
occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v.
Superior Court, supra, 54 Cal.3d at p. 903.) The Complaint alleges that “defendants”
lied to police and the coroner’s office, not to Plaintiffs themselves.
       In opposition to the demurrer, Plaintiffs wrote that respondents “told [P]laintiffs,
Cindy’s surviving parents, that Cindy had committed suicide.” However, the


                                               11
Complaint’s detailed allegations of the coverup cite false statements by defendants only
to police or the coroner’s office, and none directly to Plaintiffs. The only false statements
alleged to have been made to Plaintiffs’ representative were statements by the police and
coroner, not by the defendants. Plaintiffs do not set forth any facts identifying any
defendant who purportedly said anything directly to Plaintiffs, nor do Plaintiffs allege
when and where such statements, if any, were made. Plaintiffs did not argue in
opposition to the demurrer, and make no suggestion here, that they could amend their
complaint to allege in good faith that any false statements about suicide were made to
them by any defendant directly. No such claim was made in any of the prior complaints.
Since Plaintiffs make no proffer in support of a further amendment, and made no request
to amend, we assume they cannot. (Ortega v. Contra Costa Community College Dist.
(2007) 156 Cal.App.4th 1073, 1080 [a plaintiff has the burden of proving that an
amendment would cure the defect].)
       The trial court also correctly ruled that the negligent infliction of emotional
distress claim failed because Plaintiffs alleged no preexisting relationship with the
Demurrer Respondents that would give rise to a duty of care. “[A] cause of action to
recover damages for negligently inflicted emotional distress will lie . . . in cases where a
duty arising from a preexisting relationship is negligently breached. [Citations.]”
(Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074.) Here, defendants’ preexisting
relationship was with Cindy, not Cindy’s parents.
       In sum, the negligent and intentional infliction of emotional distress claims were
properly dismissed as to all of the Demurrer Respondents.
       5.     Direct Negligent Supervision and Retention Claim
       The cause of action for negligent supervision and retention alleges that Tribal
Technologies negligently failed to investigate the backgrounds of Vierra and Dinovich,
who allegedly murdered Cindy. Purportedly, such an investigation would have disclosed
“that Vierra had a history of training female subordinates to seduce clients in order to win
business,” that Dinovich was participating in this sexual conduct, and that Vierra had a
“history of violent behavior and murder against women.” Allowing Vierra to work at


                                             12
Tribal Technologies as Cindy’s supervisor and carry out his schemes with Dinovich’s
help contributed to Cindy’s death. The trial court dismissed the claim as to Tribal Brands
because Plaintiffs did not allege either Vierra or Dinovich was employed by Tribal
Brands. Because we have concluded that the court should have allowed Plaintiffs to
amend their complaint to assert alter ego liability against Tribal Brands, this ground for
the court’s ruling fails. But the ruling was correct for a different reason.
       “ ‘An employer may be liable to a third person for the employer’s negligence in
hiring or retaining an employee who is incompetent or unfit. [Citation.]’ [Citation.]
Negligence liability will be imposed upon the employer if it ‘knew or should have known
that hiring the employee created a particular risk or hazard and that particular harm
materializes.’ [Citation.]” (Delfino v. Agilent Technologies, Inc.(2006) 145 Cal.App.4th
790, 815.) The employer owed Cindy a duty of care as its employee. Neither Tribal
Technologies nor Tribal Brands, however, had any such duty to Plaintiffs. With no
preexisting relationship with Plaintiffs and no corresponding duty of care to them, Tribal
Brands cannot be held liable in negligence (including negligent supervision and
retention) with respect to Plaintiffs. Therefore, the trial court correctly dismissed the
direct claim for negligent supervision and retention as to Tribal Brands.
       Plaintiffs’ wrongful death claim against Tribal Brands, however, may be premised
on alter ego liability for Tribal Technologies’ negligent supervision and retention of
Vierra, leading to Cindy’s wrongful death. (Cf. Nally v. Grace Community Church
(1988) 47 Cal.3d 278, 300–304 [analyzing wrongful death claim based on an allegation
that intentional infliction of emotional distress caused decedent to commit suicide].) The
wrongful act underlying a wrongful death claim is directed toward the decedent, not the
plaintiff. (See, e.g., ibid.)
       As to the individual Demurrer Respondents, Plaintiffs’ direct claims for negligent
supervision and retention also fail because the individual respondents, even if they had
some responsibility for supervision and retention of other employees (and there are no
pleading allegations that they did), owed no duty of care to Plaintiffs. “[E]xcept where a
statutory exception applies, an employee or former employee cannot sue other employees


                                              13
based on their conduct relating to personnel actions,” even if the employees acted with
malice. (Sheppard v. Freeman (1998) 67 Cal.App.4th 339, 342; id. at pp. 346–347.)
Because the individual Demurrer Respondents could not have been held liable to Cindy
for negligent supervision and retention, Plaintiffs also cannot maintain a wrongful death
action against them based on negligent supervision and retention.
       The trial court properly dismissed the direct negligent supervision and retention
claims against the Demurrer Respondents, although negligent supervision and retention
may form the basis of Plaintiffs’ potentially valid wrongful death claim against Tribal
Brands.
       6.     Punitive Damages
       The trial court dismissed all of Plaintiffs’ claims for punitive damages because
“[i]n the absence of actual damages, Plaintiffs may not recover punitive damages. (Civ.
Code, § 3294, subd. (a) [punitive damages recoverable ‘in addition to’ actual damages].)”
The trial court earlier sustained the demurrer of Tribal Technologies to the punitive
damage allegations of the Complaint with leave to amend. Plaintiffs’ ability to state a
cognizable claim against Tribal Brands for punitive damages is therefore entirely
dependent upon the outcome of Plaintiffs’ similar claim against Tribal Techologies.
                                   III.    DISPOSITION
       Plaintiffs’ purported appeal from the orders granting Chordia’s and Yusim’s
motions quashing service of process is dismissed for lack of jurisdiction.
       The March 11, 2014 “Order Sustaining Demurrer of Defendant Tribal Brands, Inc.
Without Leave to Amend and Denying Motion to Strike as Moot” is reversed with
respect to Plaintiffs’ wrongful death cause of action and affirmed in all other respects.
On remand, the court shall grant Plaintiffs leave to amend their fourth amended
complaint to state a wrongful death cause of action against Tribal Brands.
       The April 2, 2014 “Order Sustaining Demurrer of Defendants Allen Morgan,
Steve Brickman and Dylan McIlhenny Without Leave to Amend” and the April 15, 2014
“Order Sustaining Demurrer of Alison Guerrero to Fourth Amended Complaint” are
affirmed.


                                             14
      The May 8, 2014 “Judgment and Dismissal as to Defendants Tribal Brands, Inc.,
Alison Guerrero, Allen Morgan, Steve Brickman, and Dylan McIlhenny” is reversed as to
Tribal Brands and affirmed as to the other defendants.
      Each side shall bear its own costs on appeal.




                                           15
                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




                            16
