Judge Jill Feeney, Case 20STCV16873 2023-02-08 Tentative Ruling

This is an action for trespassing, assault, wrongful imprisonment, and intentional infliction of emotional distress arising from a home invasion which took place in June 2019. Plaintiffs Francisco Balux Tziquin and Dulce Miriam Mateos Ruiz filed her Complaint against Cold Case Investigations and Michael E. Tupa on May 4, 2020.

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).)

“[R]espondeat superior liability attaches if the activities that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott International., Inc. (2013) 218 Cal.App.4th 499,509. Because it can be difficult to demonstrate “that a corporation is directly liable for the actions of its employees or agents,” respondeat superior “can allow a plaintiff to proceed against a corporation that could have been liable under a burdensome direct liability theory.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515) “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire’ ..., but do not include independent contractors.” (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 349, 256 (Borello).)

Respondeat superior may also be based on either actual or ostensible agency. A principal may be vicariously liable for injury committed by an act of its actual agent where: (i) The principal directly authorizes the act to be committed; (ii) The agent commits the act in the scope of his or her employment and in performing service on behalf of the principal; or (iii) The principal ratifies its agent’s conduct after the fact by voluntarily electing to adopt the agent’s conduct. (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.

Defendant Bail Boys moves for summary judgment on the grounds that respondeat superior does not apply. Bail Boys argues that Plaintiff has no evidence that Defendant Tupa was an employee or agent of Bail Boys.

Plaintiffs’ SAC states that on June 8, 2019, Defendant Tupa and two other individuals acting on behalf of Bail Boys broke down their door and threatened them with firearms while attempting to locate another individual, Reyes Pelico. (SAC ¶¶28-44.) Tupa believed Pelico was living in unit 200 of the apartment building where Plaintiffs lived and instead broke into Plaintiffs’ apartment, unit 203. (SAC ¶¶44-45.)

Bail Boys’ evidence shows that Bail Boys hired Defendant Michael Tupa as an independent contractor to locate and retrieve Reyes Pelico. (UMF No. 1.) Bail Boys’ Vice President, Joy Boileau, testifies that Bail Boys is in the business of helping individuals in Southern California post bail. (Boileau Decl., ¶3.) Bail Boys does not provide fugitive retrieval services. (Id., ¶4.) When a client fails to appear for a hearing and bail is forfeited, Bail Boys pick a bail enforcement agent service at random. (Id., ¶5.) In this instance, Bail Boys hired Tupa to retrieve Pelico. (Id.) The length of Tupa’s hiring and Tupa’s payment depended on whether Tupa was able to locate and retrieve Pelico. (Id.)

Bail Boys generally provides the fugitive’s name, the notice of court appearance that they failed to appear at, copies of the bond, and pictures. (Id.) After hiring Tupa, Bail Boys had no right to and did not control any methods or means by which Tupa would seek and apprehend Pelico. (Id., ¶6.) Bail Boys did not know of the specific means and time when Tupa would conduct his work. (Id.) Tupa also provided his own equipment to locate Pelico. (Id.)

Bail Boys’ evidence shows that Tupa was not an employee of Bail Boys, but an independent contractor tasked with finding and apprehending a bail bond client. Even under a theory of ostensible agency, Bail Boys’ evidence shows that Bail Boys did not direct or ratify Tupa’s conduct. The only information Bail Boys provided to Tupa and other contractors was the client’s name, the hearing the client failed to appear for, bail information, and pictures. Bail Boys allowed its contractors, including Tupa, to perform their work using their own methods and means. Tupa also provided his own equipment. Bail Boys was not apprised of Tupa’s methods. Because Bail Boys did not direct Tupa’s methods, Bail Boys could not have authorized Tupa to break down Plaintiffs’ door and threaten them with firearms. Because they did not know what Tupa’s methods were, it is also reasonable to infer that Bail Boys did not thereafter ratify Tupa’s conduct. Therefore, there is no ostensible agency here.