Judge Jill Feeney, Case Number: 20STCV33839, Date: 2023-09-20 Tentative Ruling

This is an action for battery, elder abuse, violations of the Unruh and Bane Acts, Intentional Infliction of Emotional Distress (“IIED”), negligence, and negligent hiring. Plaintiff alleges that on September 8, 2018, she was admitted as a patient to the Hollywood Presbyterian Medical Center. A member of medical staff then asked security guards working for Healthcare Security Service, Inc. to remove her from the hospital. Before Plaintiff could comply with the guard’s request to leave, the guard forcibly attempted to remove Plaintiff’s wristband. During the struggle, a guard struck Plaintiff in the head and body, injuring her.

A motion for summary judgment allows courts to cut through the parties' pleadings in order to determine whether, despite the allegations, trial is in fact necessary to resolve a dispute by determining whether an opposing party can show evidentiary support for a pleading or claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a party cannot provide that evidentiary support, summary judgment allows dismissal without the need for trial. (Id.)

Under Code of Civil Procedure section 437c(c) “the motion for summary judgment shall 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.” In making this determination “the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.” (Id.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

“When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30 (internal quotation marks omitted).)

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 that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co. 25 C4th at 850.) “To avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-3.)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Hospital first argues that the security guard on duty did not strike Plaintiff. Hospital provides a Detective’s Case Progress Log showing that LAPD Detective Ismael Peinado interviewed the security guard on duty, Metudio Opesiano, who informed Peinado that that he attempted to remove Plaintiff’s hospital identification bracelet per hospital policy upon discharge, Plaintiff attempted to flee down a hallway, and she fell on the ground and was escorted from the property. (Hospital’s Exh. C.) Opesiano denied hitting Plaintiff. (Id.)

Sworn statements by police officers are admissible under Evidence code, section 1280 as public employee records to the extent that they report the officers’ firsthand observations. (Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 737-38.)

Here, the police records submitted are admissible to the extent that they report an officer’s firsthand observations. Although Peinado reports his firsthand account of the conversation with Opesiano, the statement made by Opesiano is hearsay because it is an out of court statement made by Peinado being offered here for its truth, that Plaintiff fell and Opesiano did not strike her. Therefore, the statement is hearsay without an exception.

Hospital also provides a declaration from Gabriela Duran-Lopez, Director of Patient Relations, who wrote to Plaintiff explaining that there was a discrepancy between what Plaintiff reported on her patient grievance form and what was recalled by staff and reviewed on camera. However, the letter does not contain any description of what took place on the date of the incident.

Hospital next argues that there is no evidence Plaintiff was injured as a result of the alleged incident. Hospital provides Plaintiff’s medical records showing that on September 21, 2018, Plaintiff presented to Adventist Health Glendale for a cervical spine x-ray. (Hospital’s Exh. E.) The general diagnostic report shows that there was no acute cervical spine trauma and only found cervical spine degenerative disc disease. (Id.) The records show that Plaintiff did not suffer a spine injury as she alleges in her FAC. Hospital also provides records showing that on October 1, 2018, Plaintiff presented to Olympia Medical Center complaining of a headache after the incident. (Hospital’s Exh. F.) The records show that a CT scan of Plaintiff’s head did not reveal any acute intracranial abnormality. (Id.) Medical staff did not find signs of injury to Plaintiff’s head. (Id.)

The evidence shows that Plaintiff suffered no injury as a result of the incident. However, the elements of battery are not limited to touching that causes injury. Rather, harmful or offensive touching would satisfy this element of battery. The least touching may constitute battery, meaning force is enough, and the touching need not be violent, severe, cause bodily harm, pain, or leave a mark. (CACI No. 1300; People v. Mansfield (1988) 200 Cal.App.3d 82, 88.)

Here, Plaintiff alleged in the FAC that a security guard struck her in the head and body while attempting to remove her hospital wristband. (FAC ¶11.) Even if the touching did not leave injuries, it is common sense that the act of striking someone is harmful. As discussed above, Hospital provides no other evidence of whether the security guard struck Plaintiff. Therefore, Hospital fails to meet its burden of proving no triable issue of material fact remains over whether Plaintiff suffered a harmful or offensive touching.

“Parties to a contract . . . may define therein their duties toward one another in the event of a third-party claim against one or both arising out of their relationship. Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims. (See Civ. Code, section 2772 [“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one parties, or of some other person”].) Parties to an indemnity contract have great freedom of action in allocating risk, subject to limitations of public policy. (See Peter Culley & Associates v. Superior Court (1992) 10 Cal.App.4th 1484, 1492 [parties may require negligence by the indemnitor as a condition to indemnification]; Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 505 [parties may establish a duty in the indemnitor to save the indemnitee harmless even if the indemnitor is not negligent].)

An indemnity obligation may arise from “express contractual language establishing a duty in one party to save another upon the occurrence of specified circumstances” or “in equitable considerations brought into play either by contractual language not specifically dealing with indemnification or by the equities of the particular case.” (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506-507.) Courts interpret indemnity agreements according to the language and contents of the contract as well as the intention of the parties as indicated by the contract. (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 968.) “[T[he specificity of the language used is a key factor in construction of an indemnity agreement. ‘To obtain greater indemnity, more specific language must be used.’” (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1278, citation omitted.)

Hospital provides the Healthcare Security Services Agreement, which states that HSS “indemnifies and holds [Hospital] harmless from and against any and all liability, losses, damages, claims, causes, or actions, and any expenses associated therewith…caused or asserted to have been caused as a result of negligence or misconduct of HSS and/or its officers and employees.” (Hospital’s Exhibit I, p. 10.)

Hospital provides Plaintiff’s medical records documenting her September 8, 2018 visit. (Hospital’s Exhibit B.) The records show that Plaintiff presented with a history of hypertension complaining of abdominal pain, nausea, vomiting, and dizziness. (Id.) Laboratory testing was unremarkable and medical staff performed an abdomen exam which revealed Plaintiff’s symptoms were benign and did not require surgery. (Id.) Medical staff counseled Plaintiff on the risks of hypertension, found that her condition was good, and discharged her with aftercare instructions. (Id.)

The evidence shows that Hospital discharged Plaintiff after medical staff completed testing and exams on Plaintiff and found that her condition was good and could be managed with home care. There is no mention in the records that any member of medical staff asked HSS guards to eject Plaintiff from the premises. Although Hospital failed to provide evidence of how the altercation with the security guard took place, the allegations of the FAC state that the security guard’s striking Plaintiff gave rise to this action.

With respect to the issues framed by the FAC with respect to Hospital, Plaintiff alleges that a member of medical staff asked HSS guards to eject Plaintiff from the hospital. (FAC ¶10.) Before Plaintiff could comply with the request, a guard physically restrained her and attempted to remove her wristband, striking Plaintiff in the head and body during the process. (FAC ¶11.)

There is no allegation that any misconduct on Hospital’s part caused the guard to strike Plaintiff. Plaintiff alleges that it was the policy of Hospital to prevent patients from leaving with their wristbands. ((FAC ¶11.) However, the existence of this policy, even if true, does not constitute tortious conduct on the part of Hospital.

Pursuant to the indemnification agreement, HSS is liable for Plaintiff’s injuries caused by misconduct by its guards. Hospital meets its burden of showing no triable issue of material fact remain over whether it is liable for Plaintiff’s injuries caused by an HSS guard’s misconduct under the agreement with HSS.

Plaintiff testified during her deposition that when she was discharged, the discharge nurse told her she would receive no medicine and asked for the wrist band. (Johnson Depo., 116:13-21.) Plaintiff ran out of the room past the nurse when security guards attacked her. (Id., 116:22-117:1.) The guards put her in a headlock and hit her on the head with a weapon while trying to remove the wrist band. (ID., 117:3-9.)

The evidence shows that Plaintiff was discharged after receiving after care instructions and attempted to run out of the emergency department when a nurse asked her for her wrist band. Even if the guard was enforcing Hospital’s policy to remove patients’ hospital bracelets, Plaintiff provides no evidence that the policy is itself improper. Plaintiff thus fails to provide evidence that her injuries were caused by Hospital’s misconduct. Plaintiff fails to meet her burden of proving triable issues of material fact remain over whether Hospital is to be indemnified by HSS under the agreement with HSS.

Hospital moves for summary judgment as to the elder abuse cause of action on the grounds that (1) there is no evidence Plaintiff is a dependent adult, (2) there is no evidence that Hospital committed a conscious or willful act of egregious neglect or abuse sufficient to support a cause of action for elder abuse, (3) there is no evidence showing that Hospital acted with recklessness, oppression, fraud, or malice, and (4) there is no evidence of involvement by an officer, director, or managing agent.

Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), Welf. & Inst. Code, section 15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code, section 15610.23, subd. (a).) The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) he is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. (See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666.) For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789.)

The statutory definition of dependent adult is broad and is not limited to persons living in nursing homes or other health care facilities. (Cabral v. County of Glenn (E.D. Cal. 2009) 624 F.Supp.2d 1184, 1194.) However, the statutory definition must be read in light of the relevant legislative history and of reason. (Id.) Because the legislature intended elder abuse statutes to protect residents of nursing homes and other health care facilities, the definition of dependent adult should reasonably extend only to persons whose disabilities and needs are comparable to persons who are compelled to live in nursing homes and other health care facilities. (Id.) For example, an individual who requires assistance with most activities of daily living, including cooking, bathing, toileting, and other tasks would have conditions comparable to those compelled to live in a nursing facility. (Id at pp.1194-1195.)

Here, Defendants provide Plaintiff’s medical records from the September 2018 visit to Hospital, which showed that she had a history of schizophrenia, hypertension, asthma, and obesity. (Hospital’s Exh. B.) Her laboratory test results were unremarkable. (Id.) Plaintiff was prescribed medication and demonstrated good understanding of after care instructions. (Id.) Plaintiff was discharged home. (Id.) Defendants also provide Plaintiff’s deposition testimony where Plaintiff states she held a job with DoorDash at the time of the incident. (Johnson Depo., 32:17-35:20.)

Although Plaintiff has a history of conditions including schizophrenia, asthma, hypertension, and obesity, the records do not show that Plaintiff’s condition was such that she required assistance with daily living or had any other conditions that restricted her ability to carry out normal activities comparable to a person who would be compelled to live in a nursing facility. Additionally, Plaintiff understood the after care instructions and was discharged to manage her own care at home with medication. Finally, Plaintiff’s deposition testimony shows that she is able to work and worked for DoorDash until she lost her car and was injured. Because the evidence does not show Plaintiff had any limitations restricting her ability to carry out normal activities, Hospital meets its burden of proving no triable issues of material fact remain over whether Plaintiff was a dependent adult.

The burden shifts to Plaintiff. Plaintiff argues that she has evidence that her schizophrenia was so disabling that she was hospitalized for it about three times as recently as 2019. Plaintiff supports this argument with her deposition testimony. Plaintiff was diagnosed with schizophrenia around 1996 or 1997. (Johnson Depo., 81:2-7.) Plaintiff had anxiety, paranoia, and heard voices. (Id., 82:17-24.) Plaintiff was hospitalized about three times due to the schizophrenia. (Id., 83:20-84:5.) On one occasion, police sent Plaintiff to Olive View Medical Center in Sylmar because she had called 911 too many times and was discharged because there was nothing wrong with her. (Id., 84:17-22.) Plaintiff takes medicine to keep her schizophrenia under control. (Id., 230:18-231:2.) Plaintiff also has depression, the mental capabilities of a 12 year old, and a learning disability. (Id., 232:16-19.)

Plaintiff’s testimony shows that she has mental conditions, including schizophrenia, depression, anxiety, paranoia, and a learning disability. However, Plaintiff also admits that her schizophrenia is being managed with medication. Plaintiff provides no evidence that these conditions restrict her ability to carry out normal activities, such as her ability to perform the activities of daily living. Although Plaintiff argues that her work for DoorDash is not a job but gig work, Plaintiff’s employment status alone does not show that her disabilities restrict her ability to carry out normal activities. Therefore, Plaintiff fails to provide evidence that she is a dependent adult as defined by Welf. & Inst. Code, section 15610.23. Plaintiff fails to meet her burden of proving triable issues of material fact remain over whether she is a dependent adult.

Under the Unruh Act, “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, section 51(b).) “No business establishment of any kind whatsoever shall discriminate against . . . any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.” Id., section 51.5(a).

Here, as discussed above, Hospital admitted Plaintiff as a patient and discharged her with medication and after care instructions after completing testing and an examination. The evidence thus shows that Hospital did not deny access to Hospital’s services because Hospital admitted and treated Plaintiff. Hospital meets its burden of proving there are no triable issues of material fact remaining over whether Hospital denied Plaintiff access to its services.

The burden shifts to Plaintiff. Plaintiff argues that Hospital battered Plaintiff on account of her race because the security guards are not African American. However, whether the guards were African American does not show that Hospital discriminated against Plaintiff on account of her race. The alleged altercation took place when Plaintiff refused to return her hospital wrist band. Although Plaintiff provides depositions and other exhibits from other unrelated cases, the Court granted Hospital’s objections to this evidence because they are not relevant to the case at hand. Plaintiff provides no evidence that the altercation here was due to her race. Moreover, the evidence shows that Hospital treated Plaintiff and discharged her, meaning Hospital did not deny her services and thus could not have violated Civ. Code, section 51(b). Plaintiff fails to meet her burden of proving triable issues of material fact remain over whether Hospital denied her services.

Hospital moves for summary judgment as to the Bane Act on the grounds that it did not interfere with Plaintiff’s constitutional rights and there is no evidence that any of its employees or agents used threats, intimidation, or coercion against Plaintiff.

Bane Act liability occurs when a defendant’s threats, intimidation or coercion interferes or attempts to interfere “with the exercise or enjoyment by any individual 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, section52.1(a); see City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077 [determining plaintiff must allege and prove that defendant interfered with plaintiff’s rights under federal or state law].) The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, 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. (Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 882-883; see also Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [identifying Bane Act as intended to address only egregious interferences with constitutional rights, where the act of interference with a constitutional right must itself be deliberate or spiteful, beyond just any tort, such as negligence].)

There is also no evidence that Hospital interfered with Plaintiff’s constitutional rights during its treatment of Plaintiff. Hospital meets its burden of proving no triable issues of material fact remain over whether Hospital violated Plaintiff’s Constitutional rights.

The burden shifts to Plaintiff. Plaintiff argues that Hospital violated the Bane Act when it directed HSS guards to punch Plaintiff so that she would give up her wrist band. However, Plaintiff’s account of events is that she attempted to run from the emergency department when she was stopped by security and the altercation took place. Plaintiff does not provide evidence that hospital staff directed HSS guards to punch or strike her in order to remove the wrist band. Additionally, Plaintiff provides no evidence or authority to support her assertion that she had a constitutional right to keep the wrist band. Therefore, Plaintiff fails to meet her burden of proving a triable issue of material fact remains over whether Hospital interfered with her constitutional rights.

Hospital moves for summary judgment as to the cause of action for IIED on the grounds that there is no evidence that Hospital or its employees or agents engaged in extreme and outrageous conduct or that Plaintiff suffered severe or extreme emotional distress.

The elements for a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Here, Hospital argues that there is no evidence that its employees or agents engaged in extreme and outrageous conduct. As discussed above, Hospital failed to provide evidence of how the incident took place. Thus, the only available evidence is Plaintiff’s account of the events. Plaintiff testified that during the altercation, an HSS guard struck her in the head with a weapon. The Court cannot find as a matter of law that the guard’s conduct was not extreme and outrageous. Nevertheless, as discussed above, HSS agreed to indemnify Hospital for damages caused by the misconduct of its employees. Because Plaintiff’s allegations show that damages were caused by the HSS guard’s conduct of striking Plaintiff and not any negligence or misconduct on Hospital’s part, Hospital is indemnified by HSS for any liability with respect to Plaintiff’s injuries. Hospital meets its burden of proving no triable issue of material fact remains over whether it is indemnified by HSS.

Plaintiff argues that battery on a disabled person is criminal in nature and that she did suffer severe emotional distress as a result of the subject incident. However, Plaintiff makes no argument as to HSS’s indemnification of Hospital. Plaintiff fails to meet her burden of proving a triable issue of material fact remains over whether Hospital is indemnified by HSS with respect to the conduct here.

“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.)

Civ. Code, section 1714(a) provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

“[W]hile negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1096.) Whether one owes a duty to another must be decided on a case-by-case basis. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46.) Every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being harmed as a result of their conduct. (Id.)

Hospital first argues that it owed no duty to Plaintiff because Plaintiff was no longer a patient after she was discharged. However, Plaintiff was still on its premises, meaning Hospital still had a duty to protect Plaintiff from injuries cause by a want of ordinary care in the management of the property, including the conduct of the HSS guards Hospital engaged to provide security services. The evidence shows that Plaintiff’s injuries were caused by an HSS guard’s alleged conduct of striking her in the head.. Thus, no negligence or misconduct on Hospital’s part caused Plaintiff’s injuries. Additionally, as discussed above, Hospital is indemnified for misconduct or negligence on the part of HSS’s employees. Hospital meets its burden of proving no triable issue of material fact remains over whether Hospital caused Plaintiff’s injuries.

The burden shifts to Plaintiff. Plaintiff argues that Hospital had statutory duties to protect Plaintiff. However, Plaintiff does not identify these statutes in the moving papers or the FAC. In any case, Hospital had a duty of ordinary care to Plaintiff because she was still on Hospital’s premises at the time of the incident. Plaintiff provides no evidence showing any negligence or misconduct on Hospital’s part caused her injuries. Plaintiff fails to meet her burden of proving a triable issue of material fact remains over whether Hospital caused Plaintiff’s injuries.

Hospital moves for summary judgment as to the cause of action for negligent hiring on the grounds that Hospital had no knowledge of any HSS security officer’s past, had no reason to believe any HSS officers were unfit, and had no reason to believe HSS failed to use reasonable care in investigating hires.

“[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 development 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.)

Here, Hospital argues that when it engaged HSS to provide security services, HSS agreed to screen personnel assigned to Hospital by conducting a background check and ensuring all personnel met HSS’s minimum hiring profile. (Hospital’s Exh. I.) Additionally, HSS was responsible for providing training to its personnel. (Id.) Additionally, the guards are HSS’s employees who are merely assigned to Hospital by HSS. Because HSS was responsible for performing background checks and training its own personnel, Hospital would not know and had no reason to know that hiring the security guards at issue would create a particular risk that Plaintiff would be struck by one of the guards. Hospital meets its burden of proving no triable issue of material fact remains over whether Hospital knew or should have known that hiring the security guards would have created a particular risk or hazard.

Plaintiff makes a conclusory argument that there is a triable issue of material fact over whether the guards’ conduct with respect to restraining people made them unfit for their work. However, a plaintiff must show that an employer knew of a particular risk of harm when hiring the employee at issue and before the particular harm occurs. The guards’ conduct at the time of the incident does not show that Hospital knew any of the guards presented a particular risk of harm when it engaged HSS.

Plaintiff also makes a conclusory argument that Hospital’s policy of restraining a patient amounts to actual or constructive knowledge of a guard’s unfitness. However, there is no evidence of what Hospital’s policy is with respect to the guards’ protocol. Additionally, a policy would not put Hospital on notice of a guard’s unfitness.