Judge: Daniel S. Murphy, Case: 24STCV19299, Date: 2024-10-25 Tentative Ruling

Case Number: 24STCV19299    Hearing Date: October 25, 2024    Dept: 32

BACKGROUND

            On August 2, 2024, Plaintiffs Shahbaz Farnad and Sharon Dann Farnad filed this action against Defendants Foxburg Productions, LLC (Foxburg), Gilbert Hernandez (Hernandez), and Cinema Security, Inc. (CSI). The complaint asserts causes of action for (1) negligence, (2) negligent selection of contractor, (3) negligent hiring, and (4) breach of contract. The complaint arises from the following facts.

            Plaintiffs allowed Foxburg to use their residence for commercial filming and were assured by Foxburg that the property would be protected by security. Foxburg retained CSI to provide security. One of CSI’s guards, Richard Moya, is a convicted felon and was caught on camera investigating restricted areas of the home where Plaintiffs’ valuables were located. Moya promptly left when he spotted a camera near a wi-fi router. Three nights later, three individuals broke into the residence and took $700,000 worth of property. These individuals targeted areas of the home previously investigated by Moya and also disconnected the wi-fi router. Plaintiffs allege that Defendants tipped off Moya to the location of Plaintiffs’ valuables, allowing Moya to case the property and help his accomplices burglarize it.     

            On September 30, 2024, Foxburg filed the instant demurrer and motion to strike against the complaint. Plaintiffs filed their opposition on October 14, 2024. Foxburg filed its reply on October 18, 2024.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Harwell Decl.)

DISCUSSION

I. Demurrer

            a. Hirer Liability for Independent Contractor’s Conduct

            “As a general rule, a hirer of an independent contractor is not liable for physical harm caused to others by the act or omission of the independent contractor.” (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 400.) “[T]his doctrine of nonliability ‘is founded on the principle that one person should not be compelled to answer for the fault or neglect of another over whom he has no control, and that the employer has a right to rely on the presumption that the contractor will discharge his legal duties owing to his employees and third persons.’” (Harold A. Newman Co. v. Nero (1973) 31 Cal.App.3d 490, 496.)

            There is “no authority for the proposition that the hirer of an independent security agency is liable for the negligence of the agency's employees.” (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107, emphasis in original.) However, “it appears that in California the hirer of a detective agency for either a single investigation or for the protection of property, may be liable for the intentional torts of employees of the private detective agency committed in the course of employment.” (Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 663, emphasis added.) “[A] litigant is vicariously liable for its investigator's intentional misconduct committed within the course and scope of employment.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 769, emphasis added.)

            Foxburg argues that it cannot be liable for the acts of Moya, an employee of the independent contractor, CSI. However, Foxburg’s authorities pertain to negligent acts. Here, Moya’s acts were intentional. Johnson, the case cited by Defendant, makes the distinction between negligent and intentional acts. (See Johnson, supra, 204 Cal.App.4th at p. 1107.) The hirer in that case was immune because the alleged acts were negligent. (Ibid.) “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693, emphasis added.) Because the alleged acts here were intentional, the rule of hirer immunity for negligent acts does not preclude liability against Foxburg.

            Additionally, as discussed further below, Foxburg may be liable for negligently failing to protect Plaintiffs’ property even if it is not vicariously liable for Moya’s acts.  

            b. Duty of Care

            The elements of negligence are: (1) a duty to exercise ordinary care; (2) breach of that duty; (3) causation; and (4) damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The existence and scope of a duty are questions of law for the Court. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) “A duty of care may arise . . . by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society.” (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803.)

            Plaintiff alleges that Foxburg had a duty to “act reasonably within the standard of care in securing the Residence and Plaintiffs’ personal property.” (Compl. ¶ 20.) Specifically, Plaintiffs’ agreement with Foxburg states that Foxburg would “leave said premises and all property of any kind located thereon in as good order and condition as they were immediately prior to any use of said premises” and “protect [Dr. Farnad] and to keep and save [Dr. Farnad] harmless from any and all . . . loss or liabilities for any personal injury to any person or any actual damage to other premises or property located thereon.” (Id., ¶ 15, Ex. A.) Foxburg also assured Plaintiffs that it would hire a security firm to protect the residence and its contents. (Id., ¶ 16.)

            The contract, “the general character of the activity in which the defendant engaged,” and “the relationship between the parties” in this particular case support a duty on Foxburg to ensure adequate protection for Plaintiffs’ home and belongings. (See J’Aire, supra, 24 Cal.3d at p. 803.) Whether Foxburg satisfied that duty of care when it hired CSI is a factual matter unsuited for resolution on a demurrer. (See Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 32 [“breach of . . . duty and causation are ordinarily questions of fact for the jury's determination”].) For pleading purposes, the allegations sufficiently establish that Foxburg breached its duty of care by retaining an incompetent security agency without proper vetting. (See Compl. ¶ 25.) The burglary was a foreseeable consequence of this failure.

            c. Breach of Contract

            To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

            As discussed above, the contract term at issue provides that Foxburg would leave the premises in the condition it was in before the filming, and Foxburg would protect Dr. Farnad from damage to the premises or the property within. (Compl. ¶ 15, Ex. A.) Foxburg argues that it was simply obligated to hire security, which it did. However, the contract term does not require Foxburg to simply hire security; it requires Foxburg to protect the premises and Plaintiffs’ belongings. Whether Foxburg satisfied this contract term by hiring CSI is a factual matter. For pleading purposes, the complaint sufficiently establishes that Foxburg breached its contractual obligation to protect the property when it hired an incompetent security agency without proper vetting.

II. Motion to Strike

Emotional damages are not recoverable in every case where there is an underlying claim for negligence. (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 777.) “No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort.” (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.) Courts consider the nature of the relationship between the parties, along with surrounding circumstances. (See Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 850-52.)

Foxburg seeks to strike Plaintiffs’ prayer for general damages on the grounds that such damages are generally unavailable in property damage cases. However, emotional distress damages are available if they are a foreseeable result of a defendant’s conduct based on the relationship of the parties and the surrounding circumstances. (See Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, 992 [cemetery's agreement to keep burial service private and to protect grave from vandalism]; Windeler, supra, 8 Cal.App.3d at pp. 851-52 [bailment for heirloom jewelry where jewelry's great sentimental value was made known to bailee]; Wynn v. Monterey Club (1980) 111 Cal.App.3d 789, 799-801 [agreement of two gambling clubs to exclude husband's gambling-addicted wife from clubs and not to cash her checks].)

Here, Foxburg allegedly agreed to protect Plaintiffs’ residence and belongings. (Compl. ¶ 15.) Plaintiffs allegedly allowed Foxburg to use the residence for filming upon Foxburg’s assurances that their home and property would be protected. (Id., ¶ 16.) Plaintiffs allege that they were traumatized by the invasion of their home because they feared for their safety and the safety of their child. (Id., ¶ 4.) Plaintiffs also allege that they suffered emotional distress as a result of the theft of their personal belongings with significant sentimental value. (Id., ¶ 18.)

It may be reasonably inferred from these allegations that emotional distress was a foreseeable consequence of Foxburg’s failure to adequately protect the premises. The relationship between the parties and the circumstances surrounding Foxburg’s use of the home support the recovery of general damages as in Ross, Windeler, and Wynn.

CONCLUSION

            Defendant Foxburg’s demurrer is OVERRULED. Foxburg’s motion to strike is DENIED.