Judge: Gail Killefer, Case: 19STCV35345, Date: 2023-01-30 Tentative Ruling
Case Number: 19STCV35345 Hearing Date: January 30, 2023 Dept: 37
HEARING DATE: January
30, 2023
CASE NUMBER: 19STCV35345
CASE NAME: Eddie Rankin, III v. California Department
of Corrections, et al.
MOVING PARTY: Defendant,
California Department of Corrections
OPPOSING PARTY: Plaintiff,
Eddie Rankin III
TRIAL DATE: March
28, 2023
PROOF OF SERVICE: OK
MOTION: Defendant’s
Motion for Summary Judgment
OPPOSITION: January
4, 2023
REPLY: January 17,
2023
TENTATIVE: CDCR’s motion is granted. CDCR is to give notice
and prepare a proposed judgment.
Background
This action arises in connection with the incarceration of Eddie
Rankin III (“Plaintiff”). Plaintiff
alleges that he was incarcerated by Defendant California Department of
Corrections and Rehabilitation (“CDCR”) and under its medical care from
approximately 2002 to January 2019 and that he was partially paralyzed from the
waist down prior to his incarceration.
According to Plaintiff’s Complaint, Plaintiff was not
feeling well on or about September 29, 2018, and requested medical assistance (hereinafter
the “Incident”). CDCR’s guard, Amir Kardouni (“Kardouni”) allegedly
responded to Plaintiff’s request by calling Plaintiff derogatory names and
dropping Plaintiff to the ground in the direction of a wooden gurney. As a
result, Plaintiff alleges that he landed on his neck and fractured his
vertebra, resulting in additional paralysis, injuries and
impairment. Additionally, the Complaint alleges that CDCR negligently
hired, supervised, and/or retained the other defendants.
On September 18, 2020, Plaintiff filed a Doe amendment to
the Complaint naming Kardouni as Doe 1.
On
January 6, 2021, Plaintiff filed his First Amended Complaint (“FAC”). The FAC
alleges five causes of action: (1) violation of the Bane Act (Civ. Code §
52.1); (2) violation of the Ralph Act (Civ. Code § 51.7); (3) battery against
“Doe 1”; (4) negligent hiring and retention; and (5) negligent supervision.
On June 14, 2021, Plaintiff filed the Second Amended
Complaint (“SAC”). The SAC alleges six causes of action: (1) violation of the Bane
Act (Civ. Code § 52.1) against CDCR and Does 1-20; (2) violation of the Ralph
Act (Civil Code § 51.7) against CDCR and Does 1-20; (3) battery against “Doe 1”;
(4) negligent hiring against CDCR and Does 2-20; (5) negligent supervision
against CDCR and Does 2-20; and (6) negligent retention against CDCR and Does
2-20.
On October 4, 2021, Defendants’ demurrer to the SAC was
sustained as to the first and second causes of action.
On November 5, 2021, Plaintiff filed the operative Third
Amended Complaint (“TAC”). The TAC alleges the same six causes of action. On May 13, 2021, the court overruled CDCR’s demurrer to the
TAC.
CDCR now move for summary adjudication as follows:
1. Plaintiff’s
claims against CDCR must be dismissed because it is immune pursuant to Gov.
Code. § 844.6, and section 845.6 is not applicable as medical care was summoned
for Plaintiff.
2. Plaintiff’s
claims against CDCR must be dismissed because it is immune pursuant to Gov.
Code. § 844.6, and section 845.6 is not applicable as Plaintiff did not need
immediate medical care.
3. Plaintiff’s
Fourth Cause of Action for negligent hiring fails as a matter of law because
Kardouni was not unfit or incompetent to perform the work for which he was
hired.
4. Plaintiff’s
Fourth Cause of Action for negligent hiring fails as a matter of law because
CDCR did not know and should not have known that Kardouni was unfit or
incompetent to perform the work for which he was hired.
5. Plaintiff’s
Fifth Cause of Action for negligent supervision fails as a matter of law
because Officer Kardouni did not become unfit or incompetent to perform the
work for which he was hired.
6. Plaintiff’s
Fifth Cause of Action for negligent supervision fails as a matter of law because
CDCR did not know and should not have known that Kardouni became unfit or
incompetent to perform the work for which he was hired.
7. Plaintiff’s
Sixth Cause of action for negligent retention fails a matter of law because
Officer Kardouni was not unfit or incompetent to perform the job for which he
was hired prior to September 29, 2018.
8. Plaintiff’s
Sixth Cause of Action for negligent retention fails as a matter of law because
CDCR did not know and should not have known that Officer Kardouni became unfit
or incompetent to perform the work for which he was hired.
9. Plaintiff’s
First Cause of Action for Violation of the Bane Act fails as a matter of law
because Kardouni did not act violently against Plaintiff.
10. Plaintiff’s
First Cause of Action for Violation of the Bane Act fails as a matter of law
because CDCR did not aid, abet, and/or conspire with Officer Kardouni.
11. Plaintiff’s
Second Cause of Action for Violation of the Ralph Act fails as a matter of law
because Officer Kardouni did not act violently against Plaintiff.
12. Plaintiff’s
Second Cause of Action for Violation of the Ralph Act fails as a matter of law
because CDCR did not aid, abet, and/or conspire with Officer Kardouni.
13. Defendant
CDCR is entitled to summary judgment on Plaintiff’s Bane Act and Ralph Act
claims because Plaintiff suffered no harm as a result of Officer Kardouni’s
alleged conduct.
CDCR’s notice of motion does not comply with CCP § 437c(f)(1),
which provides: “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.” CDCR’s noticed issues
either address multiple causes of action within one issue, or one cause of
action is addressed across multiple issues. Thus, the court will address the
motion pertaining to the causes of action as alleged by the TAC.
Evidentiary Objections
CDCR’s Objections to Declaration of Plaintiff
Overruled: Objections 2, 4, 6.
Sustained: Objections 1, 5.
Sustained-in-part: Objection
3: sustained-in-part as to everything after “false.”
CDCR Objections to Declaration of Reginald Terry
Overruled: Objections 7, 8,
10.
Sustained: Objection 9
Objections to Depositions Excerpts of Kardouni
Overruled:
Objection 11.
Objections to Plaintiff’s Materials and Additional
Disputed Material Facts
Overruled: Objections 13-19,
Sustained: Objections 12, 20-22.
Discussion
I.
Legal
Authority
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties' pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may
move for summary judgment in any action or proceeding if it is contended that
the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at any time after 60 days have elapsed
since the general appearance in the action or proceeding of each party against
whom the motion is directed or at any earlier time after the general appearance
that the court, with or without notice and upon good cause shown, may
direct…. The motion shall be heard no later than 30 days before the date
of trial, unless the court for good cause orders otherwise. The filing of
the motion shall not extend the time within which a party must otherwise file a
responsive pleading.
A motion for summary judgment may be granted “if all the
papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
(CCP § 437c(c).)
“The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material
facts stated shall be followed by a reference to the supporting evidence.
The failure to comply with this requirement of a separate statement may in the
court’s discretion constitute a sufficient ground for denial of the
motion.” (CCP § 437c(b)(1); see also Cal. Rules of Court, rule
3.1350(c)(2) & (d).)
In analyzing motions for summary judgment, courts must
apply a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent's claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294 (Hinesley).) CCP § 437c(p)(2) provides:
A defendant
or cross-defendant has met his or her burden of showing that a cause of action
has no merit if the party has shown that one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to the cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant
to show that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto. The plaintiff or cross-complainant
shall not rely upon the allegations or denials of its pleadings to show that a
triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.
The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].) A
motion for summary judgment must be denied where the moving party’s evidence
does not prove all material facts, even in the absence of any opposition (Leyva
v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak
(Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384,
387).
II.
Factual Summary
The majority of the
circumstances surrounding this matter are not disputed by the parties.
It is undisputed that
Plaintiff was a prisoner in CDCR custody on September 29, 2018, based upon a
conviction of voluntary manslaughter. During
the commission of this crime, Plaintiff was also shot, which left him partially
paralyzed prior to his entry into CDCR custody. (Defendant’s Separate Statement
of Material Facts; Plaintiff’s Separate Statement of Material Facts &
Additional Material Facts (together “MF”) ¶1.) The parties do not dispute
Plaintiff made a first request for medical care on September 29, 2018 and
medical care was provided to him. (MF ¶2.) After returning to his cell that
day, Plaintiff made another request for medical care—the parties dispute
whether the request was made “immediately” upon his return. (MF ¶3.)
Regarding his request, the parties
do not dispute Plaintiff called for “man down” to indicate an emergency
situation. (MF ¶4.) The parties do not dispute that Officer Legge arrived first
and responded by summoning medical care and that Kardouni arrived after medical
care was summoned. The parties dispute Kardouni’s
course of conduct after entering Plaintiff’s cell. (MF ¶¶ 7-8.) Plaintiff
alleges that “after medical care was summoned and arrived to transport him,
Officer Kardouni slammed him onto a gurney.” (MF ¶7.)
It is also undisputed Officer
Kardouni has been a sworn public safety officer with CDCR since 2016; met
CDCR’s age and educational requirements prior to hire; Officer Kardouni’s
application process included a written test, an in-person interview, and a
background investigation; Kardouni does not have a criminal history; has never
been fired, including from his employment as a police officer at Patton State
Hospital; Officer Kardouni was not prohibited from possessing, using, or having
in his custody or control a firearm prior to his hire by CDCR; and that CDCR
conducted a background check prior to hiring Officer Kardouni, which he passed.
(MF ¶¶15-21.)
Plaintiff did not previously
file an inmate complaint against Officer Kardouni. (MF ¶35.) Officer Kardouni
has participated in training provided by CDCR during his employment, including
force techniques and when a use of force may or may not be used. (MF ¶41.)
The parties also do not
dispute that Plaintiff was found, on several occasions, to be guilty of rules
violations for possession of controlled substances during his time in CDCR
custody. (MF ¶¶51-62.)
Plaintiff informed LCSW J.
Graupmann that Officer Kardouni “grab[bed] me by the shoulders and threw me on
the board. . . . He does the same things to my legs.” (MF ¶71.) During
Plaintiff’s interview with Sergeant Kang, he stated that upon his return to his
cell, he “fell out.” Plaintiff called for man down, as did others. Plaintiff
stated that Officer Legge responded and summoned medical care. After medical
care arrived, Officer Kardouni picked Plaintiff up by the shoulders and slammed
his shoulders into the wall and gurney, then picked up his legs and slammed
them into the wall and gurney. (MF ¶73,74.)
The parties dispute
Kardouni’s presence at any other point throughout that day, as well as the
temporal sequence of events regarding Kardouni’s arrival before or after
medical care had been summoned and arrived. (MF ¶74-83.)
On October 26, 2022, an
investigation into Plaintiff’s claim was initiated and Plaintiff was
interviewed by Sergeant Kang that same day. (MF ¶85.) The parties dispute the
thoroughness of Sergeant Kang’s investigation. (MF ¶¶86-90.)
III.
Analysis
A.
First Cause of Action: Violation
of Bane Act
Civil Code § 52.1 (the “Bane Act”) allows an
individual to sue for damages if a person or persons “interferes by threat,
intimidation, or coercion, or attempts to interfere by threat, intimidation, or
coercion, with the exercise or enjoyment by any individual or individuals of
rights secured by the Constitution or laws of the United States, or of the
rights secured by the Constitution or laws of this state….” (Civ. Code §
52.1(a), (b).) “The essence of a Bane Act claim is that the
defendant, by the specified improper means (i.e., ‘threat[], intimidation
or coercion’), tried to or did prevent the plaintiff from doing something he or
she had the right to do under the law or to force the plaintiff to do something
that he or she was not required to do under the law.” (King v. State
of Cal. (2015) 242 Cal.App.4th 265, 294.)
Under Gov. Code § 844.6, a “public entity” is not
liable for “an injury to any prisoner” unless certain exceptions apply,
including as provided in Gov. Code § 845.6. (Gov. Code § 844.6(a)(2).) However,
“[n]othing in this section exonerates a public employee from liability for
injury proximately caused by his negligent or wrongful act or omission.” (Gov.
Code § 844.6(d).)
Here, CDCR first argues section 844.6 affords CDCR
immunity from this action, as Plaintiff’s claims do not meet the “narrow exception”
provided by section 845.6. (Motion, 15-16; citing Castaneda v. Department of
Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1070.)
Specifically, the Castaneda court found:
“Public entities in California are not liable for
tortious injury unless liability is imposed by statute. (§ 815.) ‘[S]overeign
immunity is the rule in California; governmental liability is limited to
exceptions specifically set forth by statute.’ (Cochran v. Herzog
Engraving Co. (1984) 155 Cal.App.3d 405, 409.) Section 844.6, subdivision
(a)(2) establishes the State's immunity to liability for injuries to prisoners.
Section 845.6 both affirms the public entity immunity to liability for
furnishing medical care, and creates a narrow exception to that immunity.
Section 845.6 states in relevant part, ‘Neither a
public entity nor a public employee is liable for injury proximately caused by
the failure of the employee to furnish or obtain medical care for a prisoner in
his custody; but, except as otherwise provided by Sections 855.8 and 856
[concerning mental illness and addiction], a public employee, and the public
entity where the employee is acting within the scope of his employment, is
liable if the employee knows or has reason to know that the prisoner is in need
of immediate medical care and he fails to take reasonable action to summon such
medical care.’
The first clause of section 845.6 establishes the
immunity generally of both the public entity and its employees from liability ‘for
injury proximately caused by the failure of the employee to furnish or
obtain medical care for a prisoner in his custody.’ The second phrase
creates a limited public-entity liability when: (1) the public employee ‘knows
or has reason to know [of the] need,’ (2) of ‘immediate medical
care,’ and (3) ‘fails to take reasonable action to summon such
medical care.’ [internal citations omitted]
Section 845.6 is very narrowly written to authorize a
cause of action against a public entity for its employees' failure to summon
immediate medical care only, not for certain employee's malpractice in
providing that care. ... Thus, section 845.6 creates out of the general
immunity a limited cause of action against a public entity for its employees'
failure to summon immediate medical care only. The statute
does not create liability of the public entity for malpractice in furnishing or
obtaining that medical care. [internal citations omitted; see also Nelson
v. State of California, supra, 139 Cal.App.3d at pp. 78–79, [state
liable for failure to summon medical care; medical malpractice causes of action
may only be brought against employee providing care].) Nor does the statute
make the State “ ‘vicariously liable for the medical malpractice of its employees.
Although the State is required to pay the judgment assessed against its
employees for medical malpractice committed against a prisoner, the State is
immune from suit directly.’’
A narrow reading of section 845.6 is also compelled as
a matter of statutory interpretation. First, the duty to summon is presented as
the exception to the broad, general immunity for failing to furnish or provide
medical care. Second, section 845.6 imposes the duty to summon on ‘public
employees’ generally, not medical care providers in particular. Many such
public employees are ‘[p]rison authorities [who] do not have the medical
training to know whether a prisoner's medical condition has been properly
diagnosed and treated.’ The Legislature could not have contemplated imposing a
duty to do more than to summon medical care as it imposed that
duty on ‘public employees,’ such as prison authorities, generally.
The distinction between failure to summon medical
care—for which the State can be held liable under section 845.6—on the one
hand, and negligence in providing care—for which the State is
immune—on the other hand, was addressed in Nelson v. State of
California, (1983) 139 Cal.App.3d 72. There, the plaintiff was
incarcerated when he complained of various medical problems that were symptoms
of diabetes. (Id. at p. 75.) He filed a tort claim reciting the ‘‘failure of the Department of Corrections to
diagnose and treat or allow claimant to maintain his ongoing medications.’’ (Id. at
p. 80.) The plaintiff's ensuing complaint was based on the failure to summon
immediate, competent medical care under section 845.6. (Nelson v. State of
California, supra, at p. 78.) Nelson held ‘as a
matter of statutory interpretation, that the act of a doctor or other such
professional who, in the course of treatment of a prisoner, fails to prescribe
and/or provide the correct medication is [not] the legal equivalent to a
failure to summon medical care as set forth in [§ 845.6].’ (Id. at pp.
80–81.) ‘Once a practitioner has been summoned to examine and treat
a prisoner, he or she is under a duty to exercise that degree of diligence,
care, and skill such as is ordinarily possessed by other members of the
profession. Failure to do so is malpractice. Failure of a practitioner to
prescribe or provide necessary medication or treatment to one he or she has
been summoned to assist is a breach of such duty and as such is
also medical malpractice and clearly, as a matter of the plain meaning
of the statutory language, cannot be characterized as a failure to
summon medical care.’” (Castaneda v. Department of Corrections &
Rehabilitation (2013) 212 Cal.App.4th 1051, 1069–1071.)
CDCR argues Plaintiff’s claims fail here “because
medical care was summoned prior to his allegations of excessive force by [Kardouni]
and because Plaintiff was not in need of immediate medical care...” (Motion,
15-17.) CDCR further contends Plaintiff cannot avail himself of the section
845.6 exception as “medical care was summoned for Plaintiff prior to the
alleged battery.” (Id.) CDCR here also contends Plaintiff’s actions, in
laying down to specifically indicate a “man down” emergency after returning
from his first medical care that day, “establish that he was not in immediate
need of medical care, and instead, was manipulating prison staff into
responding to his complaint, about a medical issue for which he already
received medical care earlier.” (Motion, 18.)
CDCR further contends Plaintiff’s alleged inconsistent
statements here show the first cause of action must fail as a matter of law
since the changes are so numerous in times and ways, “such that a trier of fact
would be precluded from believing his allegations.” (Motion, 22.) CDCR points
to Plaintiff’s alleged inconsistent statements regarding the type of medical
care he was requesting, for which ailment, number of interactions with Officer
Kardouni on that day, and the alleged battery, as well as Plaintiff’s alleged
history of controlled substance use and falling, to emphasize a lack of
credibility here. (Motion, 22-25.)
Lastly, CDCR contends Plaintiff cannot point to any
evidence of an alleged cover-up of Kardouni’s actions as Sergeant Kang’s
investigation showed no other individuals supported Plaintiff’s allegations and
Plaintiff has failed to show how the CDCR created an official or unofficial
policy to deprive Plaintiff of medical care. (Motion, 25.) Here, CDCR concludes
by arguing there is no evidence of a neck fracture or injury to the spine
caused by an alleged assault on September 29, 2018, and the medical record shows
Plaintiff was treated for an infection in his neck. (Motion, 26-27.)
In opposition, Plaintiff points to new amendment to
section 844.6, Senate Bill 2, and its legislative history to show the
legislature’s desire to limit the immunity scope of the section more strictly. (Opposition,
7-9.) Plaintiff contends public entity liability under section 845.6 is alleged
as the basis for Plaintiff’s claims in the TAC, which pass the summary judgment
standard. (Opp., 10.) Plaintiff argues “CDCR’s arguments are not legal but
factual, relying heavily on inferences and credibility evaluations. Reliance on
inferences is only proper where it is the only plausible inference, drawn from
undisputed facts.” (Id.; citing Anderson v. Metalclad Insulation Corp.,
(1999) 72 Cal. App. 4th 284, 297.) Here, Plaintiff argues “CDCR’s actual or
constructive knowledge of Plaintiff’s need for medical care, and whether
reasonable action was taken” are all questions of fact which should be
determined at the trial stage. (Id.) Plaintiff also points to specific
uniforms worn by disabled prisoners, and testimony by the responding officers
regarding Plaintiff’s statements on the day to show “[w]hether or not Rankin’s need
for medical care was ‘immediate’ enough to fall under Government Code 845.6 is
a question of fact for the jury.” (Opp., 11.) Here, Plaintiff clarifies his
claims are based on “whether Officer Khardouni acted reasonably once he became
aware that Plaintiff was in need of medical care.” (Opp., 12-3.)
In reply, CDCR argues Plaintiff fails to support his contention
that any recent amendment section should apply retroactively to Plaintiff’s
claims here. (Reply, 6-7.) CDCR further argues section 845.6 remains
inapplicable here as a matter of law since Plaintiff’s testimony allegedly
contradicts the TAC’s allegations. (Id.) Namely, CDCR argues “Plaintiff
was exaggerating his medical need – consistent with the drug-seeking behaviors
observed soon after he began the weaning process for his morphine prescription.
Therefore, there was no immediate need for medical care required to permit
liability here.” (Reply, 7.) However, CDCR fails to provide sufficient
authority to support this contention.
CDCR argues Plaintiff’s testimony shows medical care
was summoned prior to Kardouni’s arrival. (Reply, 7-8.) Here, the CDCR points
to Plaintiff’s deposition testimony, where he stated Officer Kardouni was the
first to arrive after the medical alarm, but “Officer Legget [sic]
was the one who initiated the medical alarm... he checked on my status first
and then proceeded with... the alarm.” (Chen Decl., Exh. D, 28:2-16.) As a
result, CDCR argues the circumstances of Castaneda are similar to our
circumstances here, and section 845.6 does not apply as the alleged battery
“occurred after medical care was summoned...” (Reply, 7-8.) The court agrees.
Viewing the evidence submitted in the light most
favorable to Plaintiff, the court finds no triable issues exist with regard to
the first cause of action. Specifically, the court finds no triable issues
exist with regard to whether section 845.6 applies, and more specifically, as
to whether the alleged battery which would impose liability upon the public
entity occurred after medical care was summoned. Although Plaintiff correctly
contends that any evaluation of the reasonableness of summoning medical care or
the access to medical care in these circumstances are questions of act for
determination at the trial stage, Plaintiff’s own testimony establishes the
medical alarm was rung – and medical care was summoned -- before Kardouni
arrived. Whether Plaintiff actually needed immediate care, whether Plaintiff
sustained actual injuries, and whether Kardouni acted reasonably are therefore
no longer relevant questions for this court at the summary judgment stage, as
CDCR has made clear section 844.6 applies immunity to the CDCR in this action.
For these reasons, CDCR’s motion is granted as to this
issue.
B.
Second Cause of Action: Violation
of Ralph Act
Civil Code § 51.7 (the “Ralph Act”) provides that all
persons have the right to be free of “violence, or intimidation by threat of
violence, committed against their persons,” committed because of their
political affiliation or any characteristic defined in Civil Code section 51. A
person aggrieved under the Ralph Act may bring a civil action to recover
damages, “a civil penalty of $25,000, exemplary damages, and an award of
attorney fees.” (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th
836, 856; Civil Code §§ 52(b), (c).)
CDCR contends that Plaintiff’s second cause of action also
fails as section 844.6’s liability extends to Plaintiff’s second cause of
action as it is “premised on alleged violence by Officer Kardouni and not the
failure to summon immediate medical care.” (Motion, 17.) CDCR, in reply,
reiterates their contentions that sections 845.6 and 815.6 afford Plaintiff no
relief here as the shielding language of section 844.6 remain very clear.
(Reply, 7-8.)
Having granted CDCR’s motion as to the first cause of
action on a finding of immunity for CDCR pursuant to section 844.6, the court
now again finds there are no triable issues of material fact as to Plaintiff’s
second cause of action as well for identical reasons.
For these reasons, CDCR’s motion is also granted as to
this issue.
C.
Fourth, Fifth, Sixth Causes of
Action: Negligent Hiring and Retention, Negligent Supervision
“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.]” (Roman Catholic Bishop v. Superior Court (1996)
42 Cal.App.4th 1556, 1564–1565.) 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.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) As such, “California
follows the rule set forth in the Restatement Second of Agency section 213,
which provides in pertinent part: ‘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: ... [¶] (b) in the employment of
improper persons or instrumentalities in work involving risk of harm to
others[.]’ (Ibid.)” (Evan F. v. Hughson United Methodist Church (1992)
8 Cal.App.4th 828, 836.) Liability for negligent supervision and/or
retention of an employee is one of direct liability for negligence, not
vicarious liability. (Delfino v. Agilent Technologies, Inc. (2006)
145 Cal.App.4th 790, 815.)
CDCR contends that Plaintiff’s fourth, fifth, and
sixth causes of action are similarly shielded by section 844.6’s immunity
provision “because those
claims are premised on the theory that Officer Kardouni had a tendency for
violence and should have been supervised more closely to ensure that Plaintiff
was not subject to excessive force, battery, and/or civil rights violations. These claims make no allegations as to a history or
knowledge by CDCR that Officer Kardouni had a history of failure to summon
medical care. These claims should also be dismissed.” (Motion,
17-18.)
In opposition, Plaintiff fails to show, or
provide authority to guide this court, that the fourth, fifth, and sixth causes
of action do not fall under the immunity language of section 844.6. (Opp.,
17-18.)
The court finds Plaintiff’s fourth, fifth, and sixth causes of action also
fail as a matter of law based on Gov. Code section 844.6’s immunity provision
denying any imposition of liability upon CDCR here. (See generally Castaneda
v. Department of Corrections & Rehabilitation, supra, 212
Cal.App.4th at 1069–1072.) Plaintiff
fails to show how the immunity does not extend to CDCR in these circumstances,
and thus the court finds there are no triable issues of material fact as to
these claims against CDCR, a public entity.
For these reasons, CDCR’s motion is also granted as to these issues.
Conclusion
CDCR’s motion is granted. CDCR is to give notice.