Judge: Anne Hwang, Case: 21STCV43732, Date: 2024-07-03 Tentative Ruling

Case Number: 21STCV43732    Hearing Date: July 3, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.     Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities

2.     Separate Statement of Undisputed Material Facts[1]

3.     Declaration of Caitlin M. Salata

4.     Compendium of Evidence in Support

OPPOSITION PAPERS

1.     Plaintiff’s Opposition; Memorandum of Points and Authorities

2.     Plaintiff’s Opposition to Separate Statement of Undisputed Material Facts[2]

3.     Declaration of Igor Fradkin

4.     Compendium of Exhibits in Support

REPLY PAPERS

1.     Defendant’s Reply

2.     Defendant’s Response to Separate Statement of Disputed and Additional Undisputed Facts

BACKGROUND

On November 30, 2021, Plaintiff Ryan Cain Newell (“Plaintiff”) filed a complaint against Defendants Albertsons Companies, Inc., The Vons Companies, Inc. John Doe, and Does 1 to 100 for injuries related to a stabbing. Plaintiff alleges that on November 8, 2021, he entered a Vons grocery store and was instructed by John Doe, a security guard, to wear a mask. As Plaintiff was attempting to comply, John Doe “suddenly and without warning, physically assaulted Plaintiff and stabbed him several times with a knife with such force that Plaintiff suffered injuries and damages.” (Complaint ¶ 8.)

Against Moving Defendant The Vons Companies, Inc. (“Defendant”), Plaintiff asserts negligence and negligent hiring, supervision, and retention causes of action. Plaintiff alleges that because of the special relationship between the security guard and Defendant, Defendant owed a duty to control John Doe and protect Plaintiff. (Complaint ¶ 35.) He also alleges Defendant “knew or should have known that Defendant John Doe was incompetent and unfit and that his incompetence and unfitness created a particular risk to others, including Plaintiff.” (Id. ¶ 41.)

Defendant now moves for summary judgement, or in the alternative, summary adjudication, arguing there are no facts that Defendant breached a duty of care, and no evidence Defendant knew the guard was unfit. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)  

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

 “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)       

DISCUSSION

A. Negligence

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the¿proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) 

“ ‘Generally a person does not have a duty to control another's conduct or to warn those who may be endangered by such conduct. However, a duty may arise where a special relationship exists giving rise to a right to such protection. [Citation.]’ [Citation.] Such a special relationship exists ‘between a business establishment and its customers [which] as a matter of law places an affirmative “duty” on the proprietor to take reasonable precautions to protect patrons from reasonably anticipative criminal conduct of unknown third parties. [Citations.]’ [Citations.] Moreover, the duty is applicable to the agents and employees of the business establishment.” (Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 247.) “[F]orseeability is a ‘crucial factor’ in determining the existence and scope of a legal duty.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237.)

A duty may also arise under a respondeat superior theory, based on actual or ostensible agency, or based on a theory of negligence in hiring or retaining (discussed in greater detail below). (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 941 [discussing theories].) “[A] principal may be liable for the wrongful conduct of its agent, even if that conduct is criminal, in one of three ways: (1) if the ‘principal directly authorizes … the tort or crime to be committed’ [citations omitted]; (2) if the agents commits the tort ‘in the scope of his employment and in performing service on behalf of the principal’ [citation omitted], ‘regardless of whether the wrong is authorized or ratified by the principal’ [citation omitted], and even if the wrong is criminal [citation omitted]; or (3) if the principal ratifies its agent’s conduct ‘after the fact by … voluntarily electing to adopt the agent’s conduct … as its own’.’ (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.)

“A corporation may be held vicariously liable as a principal for the torts of its agents. [Citation.] ‘Whether a person performing work for another is an agent or an independent contractor depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent.’ [Citation.] ‘Actual agency typically arises by express agreement. [Citations.].... [¶] “ ‘Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ [Citation.] ‘The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.’ [Citation.]” [Citation.] Thus, the “formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship ....” [Citation.]’ [Citation.] ‘ “In the absence of the essential characteristic of the right of control, there is no true agency....” [Citations.] [¶] “The fact that parties had a preexisting relationship is not sufficient to make one party the agent for the other.... [Citation.] An agency is proved by evidence that the person for whom the work was performed had the right to control the activities of the alleged agent. [Citation.]” [Citations.]’” (Secci v. United Independant Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 855.)

“[W]hether an agency relationship has been created or exists is determined by the relation of the parties as they in fact exist by agreement or acts [citation], and the primary right of control is particularly persuasive. [Citations.] Other factors may be considered to determine if an independent contractor is acting as an agent, including: whether the ‘principal’ and ‘agent’ are engaged in distinct occupations; the skill required to perform the ‘agent's’ work; whether the ‘principal’ or ‘agent’ supplies the workplace and tools; the length of time for completion; whether the work is part of the ‘principal’ regular business; and whether the parties intended to create an agent/principal relationship. [Citation.]” (Secci, supra, 8 Cal.App.5th at 855.)

The existence of an agency is a factual question which can only be made as a matter of law when the essential facts are not in conflict. (Secci, supra, 8 Cal.App.5th at 854.)

Defendant argues that it did not hire Wade, and thus is not liable for his actions. Even if Wade is considered an agent, Defendant argues there is no evidence it knew he was unfit.

Here, the following facts are undisputed. On November 8, 2021, Plaintiff went to Vons grocery store located at 710 Broadway in Santa Monica, California. (UMF 1.) Phillip Wade was a security guard working at the Vons grocery store located at 710 Broadway in Santa Monica, California on November 8, 2021. (UMF 2.) On November 8, 2021, Plaintiff and Phillip Wade (“Wade”) were involved in a physical altercation at the Vons grocery store located at 710 Broadway in Santa Monica, California. (UMF 3.) Wade did not wear a Vons uniform. (Pl. Resp. UMF 4.)

Defendant sets forth the following additional facts:

-        Phillip Wade was employed by GSSI, Inc., and not Vons.  (UMF 4.)

-        No Vons employee made any physical contact with Plaintiff on November 8, 2021. (UMF 5.)

-        Vons did not hire Phillip Wade, nor train or supervise him. (UMF 6.)

Here, Defendant has not met its initial burden to show the absence of a triable issue of fact regarding whether a duty arose by virtue of a special relationship.[3] Defendant does not present any facts regarding foreseeability. Defendant only addresses the separate theory of liability, regarding whether Wade was an employee. As to this theory, Defendant has met its initial burden. In opposition, Plaintiff does not appear to dispute that Wade was employed by GSSI, Inc. However, he alleges that Wade was Defendant’s agent, and as a result, Defendant is liable for his actions.

Plaintiff sets forth the following facts:

-        Vons’ store director trained the guards on Vons’ policies and procedures, including customers wearing masks. (PAMF 1.)

-        Vons required the security guards receive training regarding Von’s shoplifting deterrence policy; public/human relations and communications; access control;  patrol techniques; fire protection; reports; legal aspects of private security/employee relations; accessibility; emergency response; and antiharassment and discrimination training. (PAMF 3.)

-        Vons had the right to reject the services of any guard assigned to the location for any reason at any time. (PAMF 8.)

-        Vons had Post Orders which specify what it requires of its security guards. (PAMF 9.)

-        Changes to the Post Orders could only be made with Vons’ approval. (PAMF 10.)

-        Vons had the right to change the Post Orders in an emergency situation. (PAMF 11.)

-        Vons had the right to create temporary special orders for the guards. (PAMF 12.)

-        Vons determined the location of the guard’s post next to the front door. (PAMF 13.)

-        Vons’ managers had the right to instruct the guard leave his post to focus on a particular area of the store and the guards were required to follow Vons’ orders. (PAMF 15.)

-        Guards needed permission from Vons to take their breaks. (PAMF 22.)

-        Vons required the guards to complete Daily Activity Reports which are maintained in a binder in the store. (PAMF 24.)

There remain triable issues of fact regarding the existence of a duty. As to the agency theory, Plaintiff raises facts regarding whether Defendant exercised sufficient control over Wade.[4]

Additionally, because breach of duty is generally a question of fact, the Court cannot conclude based on the evidence, and inferences favoring Plaintiff, that Defendant did not breach its duty. (See Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”) [breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court].)

Therefore, the motion for summary adjudication of the negligence cause of action is denied.

B. Negligent Hiring, Supervision, and Retention

Defendant also seeks adjudication on the negligent hiring, supervision, and retention cause of action.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p. 1054.) To be liable for negligent supervision and hiring, there must be a connection between the employment and injury. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Liability for negligent hiring and supervision 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. (Id. at 1339.) “The tort has developed in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Id. at pp. 1339-1340.)

Based on the facts above, since this cause of action is premised on actions of an employer, Defendant meets its initial burden since Wade was not employed by Defendant.

Here, while Plaintiff contends Wade was an agent of Defendant, he sets forth no facts establishing that Wade was an employee. He also discusses no authority applying this cause of action to an agent. Therefore, he fails to meet his burden to show a triable issue of fact surrounding the negligent hiring, supervision, and retention cause of action.

Therefore, the motion for summary adjudication as to the negligent hiring, supervision, and retention cause of action is granted.

CONCLUSION AND ORDER

Accordingly, Defendant The Vons Companies, Inc.’s Motion for Summary Adjudication of the negligence cause of action is DENIED. Defendant’s motion for summary adjudication as to the negligent hiring, supervision, and retention cause of action is GRANTED.

            Defendant shall provide notice of this ruling and file a proof of service of such.