Opinion
2d Civ. B329811
11-21-2024
JANE DOE 1, et al., Plaintiffs and Appellants, v. GARDNER MANAGEMENT, LTD., Defendant and Respondent.
Andrade Law Offices, Steven R. Andrade for Plaintiffs and Appellants. Procter, Shyer &Winter, Megan C. Winter and Kristine A. Tijam for Defendant and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Super. Ct. No. 20CV03347 Thomas P. Anderle, Judge
Andrade Law Offices, Steven R. Andrade for Plaintiffs and Appellants.
Procter, Shyer &Winter, Megan C. Winter and Kristine A. Tijam for Defendant and Respondent.
CODY, J.
Jane Doe 1, Jane Doe 2, and Jane Doe 3 (Jane Does) appeal after the trial court granted a motion for summary judgment by Gardner Management, Ltd. (Gardner). Jane Does had asserted negligence and premises liability causes of action against Gardner based on sexually inappropriate touching committed by Gonzalo Cuevas, a Gardner employee. Jane Does contend the court applied the incorrect legal framework in granting summary judgment. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gardner managed the apartment complex at which Jane Does lived with their parents. In 2011, Gardner hired Cuevas as a maintenance technician. Prior to the hiring, Cuevas completed an application and interview. Cuevas advised Gardner he had never been convicted of a criminal offense, including a felony or serious misdemeanor. Cuevas also attested he had not knowingly withheld any information that might adversely affect his chance for employment.
As part of the hiring process, Gardner performed a background check. A credit screening did not generate any results that led Gardner to believe Cuevas was unfit for employment as a maintenance employee. A multi-state criminal background check revealed no prior criminal records. Cuevas provided employment references. Two references described him as a satisfactory employee who was qualified for the maintenance worker position. One reference said he was a "'straight up guy'"; another said she would be "'sorry to lose'" him.
Cuevas worked as a maintenance worker for Gardner from the summer of 2011 until January 9, 2019. At the start of and throughout Cuevas's employment, Gardner provided him with employee handbooks containing sexual harassment policies. Cuevas was required to provide written acknowledgement that he read and understood them. Throughout his employment, Cuevas participated in sexual harassment, discrimination, and retaliation training every two years. He successfully completed all training required as part of his employment.
Cuevas was subject to yearly performance reviews. He received yearly pay raises throughout his employment, including a bonus in 2012 for "'exceptional performance recognition.'"
On Friday January 4, 2019, the parents of Jane Doe 1 and Jane Doe 2 advised Gardner's community manager Brenda Linan that they believed Cuevas inappropriately touched their daughters when he came to fix their unit's toilet on January 2, 2019. Linan said they should call the police. The same day, the mother of Jane Doe 3 reported to Linan her belief that Cuevas had inappropriately touched Jane Doe 3.
The parties disputed the precise nature of the reported touching, but the dispute has no bearing on our disposition.
Immediately after receiving these reports, Linan called Gardner's director of human resources to report the incidents. Linan also emailed the director a written summary report. That same day, Gardner informed Cuevas he was suspended without pay pending the investigation. Gardner told Cuevas not to report to work and took his master keys.
On Monday January 7, 2019, Gardner provided Cuevas with written notice of his suspension without pay. The notice also informed Cuevas that "[u]ntil this matter has been satisfactorily resolved, [he] (1) must not perform any of [his] duties for the company, (2) must not interact with any of the residents, and (3) must return all company keys, property keys, and master keys to Brenda Linan immediately."
During Gardner's investigation, Cuevas denied plaintiffs' allegations. On January 9, 2019, having completed its investigation, Gardner terminated Cuevas effective immediately.
Cuevas had lived at the apartment complex. His apartment was right next to the playground. Cuevas would visit young female children at that playground. He would give them candy, popsicles, and toys.
There was a company policy prohibiting employees like Cuevas from socializing with or befriending tenants or their families. Nonetheless, Cuevas had befriended and socialized with the parents of Jane Doe 1 and Jane Doe 2. Linan became aware of this situation but failed to document the violation. This failure violated company policy. Linan's failure to document occurred within about one to two years before January 4, 2019. Since Cuevas refused to abide by the socialization policy, he should have been terminated.
The trial court granted Gardner's summary judgment motion. The court concluded that Gardner could not be liable under the doctrine of respondeat superior because Cuevas was not acting within the course and scope of his employment. The court determined Cuevas's actions were not foreseeable as a matter of law. The court concluded Gardner was not liable for negligent hiring, supervision, or retention; Jane Does did not prove that Gardner "'knew or should have known' that Cuevas was likely to molest children."
Jane Does also brought actions against Cuevas. The court entered default judgments against Cuevas in October 2022. Cuevas is not a party to this appeal.
DISCUSSION
Jane Does assert the trial court erroneously failed to conduct the necessary two-step inquiry articulated in Brown v. USA Taekwondo (2021) 11 Cal.5th 204 (Brown). Jane Does argue that "based on the facts appearing in the record, Gardner had an affirmative duty to protect [Jane Does] from sexual assault by its employee, Cuevas ...." Applying Brown's framework, we will affirm the trial court's ruling.
Standard of Review
"[A] 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." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment "bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see also § 437c, subd. (p)(2).)
Undesignated statutory references are to the Code of Civil Procedure.
"On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
Analysis
"The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) In Brown, our Supreme Court clarified the applicable legal framework when determining whether a defendant has a legal duty to protect a plaintiff from injuries a thirty party inflicts. (Brown, supra, 11 Cal.5th at p. 209.) A two-step inquiry governs this question: "First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland [v. Christian (1968) 69 Cal.2d 108] (Rowland) to determine whether relevant policy considerations counsel limiting that duty." (Ibid.)
"A special relationship between the defendant and the victim is one that 'gives the victim a right to expect' protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that 'entails an ability to control [the third party's] conduct.' [Citation] Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect." (Brown, supra, 11 Cal.5th at p. 216.)
Both Gardner's employment of Cuevas and its role as landlord to Jane Does' parents create legally cognizable special relationships. (See Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) We must, therefore, turn to the Rowland factors to determine whether the "unforeseeability of the kind of harm suffered by the plaintiff or other policy factors . . . counsel against establishing an affirmative duty for one party to protect the other." (Brown, supra, 11 Cal.5th at p. 219.)
The Rowland factors are: "'[1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved.'" (Regents of University of California v. Superior Court (2018) of University of California v. Superior Court (2018) 4 Cal.5th 607, 628 (Regents). "These factors must be 'evaluated at a relatively broad level of factual generality.' . . . In other words, the duty analysis is categorical, not case-specific." (Id. at pp. 628-629.)
"'The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care . . . is whether the injury in question was foreseeable.'" (Regents, supra, 4 Cal.5th at p. 629.) The object of the foreseeability analysis "'is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed ....'" (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 (Cabral).)
Here, the alleged category of negligent conduct is the failure to terminate or take other corrective action after an employee, while living on the landlord's property, openly violates the landlord's policy against socializing with tenants or their families. This failure is not sufficiently likely to result in the type of harm Jane Does experienced to warrant liability. An employee might wish to socialize with tenants and their families, even in violation of company policy, for myriad benign reasons. Characterizing child molestation or related malfeasance as a likely consequence of such behavior takes too dim a view of human nature.
To the extent appellant advanced arguments for the first time at oral argument, we decline to consider them. (See Palp, Inc. v. Williamsburg National Ins. Co. (2011) 200 Cal.App.4th 282, 291, fn. 2 ["'We do not consider arguments that are raised for the first time at oral argument'"]; see also Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 753.)
While such misconduct may be foreseeable in schools or youth organizations to which parents entrust their children, apartment complexes are dissimilar environments. The mere presence of a playground and swimming pool at the complex does not convert it to a comparable setting. (Cf. Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 132 [sexual abuse by members of organization that provides activities "'exclusively'" for children is reasonably foreseeable, even if organization lacked knowledge an offending employee had previously abused or had a propensity to do so].)
"The second Rowland factor, the degree of certainty that the plaintiff suffered injury, 'has been noted primarily, if not exclusively, when the only claimed injury is an intangible harm such as emotional distress.'" (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1148.) As victims of child molestation, Jane Does' injuries "are certain and compensable under the law." (Ibid.)
The third factor, "'the closeness of the connection between the defendant's conduct and the injury suffered' [citation] is strongly related to the question of foreseeability itself." (Cabral, supra, 51 Cal.4th at p. 779.) The connection between failing to discipline or fire a resident employee who socializes with tenant families and child molestation, or other similar harm, is tenuous.
As to the moral blameworthiness of Gardner's conduct, "[u]nless the individual alleged to be negligent in a hiring or retention decision knew or should have known of the dangerous propensities of the employee who injured the plaintiff, there is little or no moral blame attached to the person's action or inaction." (C.A. v. Williams S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 878.) Gardner conducted a background check, communicated with references, provided sexual harassment training, and subjected Cuevas to performance reviews. When a defendant takes such precautions and still uncovers no indication the employee had a propensity to commit child molestation, any moral blameworthiness is negligible.
As to the next Rowland factor, imposing tort liability in this category of case will do little to prevent future harm. (See A.L. v. Harbor Development Disabilities Foundation (2024) 102 Cal.App.5th 477, 491.) Such liability is a blunt instrument. Many employees who socialize with tenant families will not molest children. Conversely, an employee might commit that heinous conduct without ever socializing with a tenant family.
Moreover, imposing a duty would place a heavy burden on landlords like Gardner and would entail negative community consequences. Landlords would expose themselves to significant liability by failing to punish the relatively innocuous conduct of socializing. This liability would shift focus away from providing tenant services. Strict enforcement of an anti-socialization policy could also lead to high employee turnover, which often reduces service quality. A rigid, unwelcoming atmosphere would likely result.
Finally, Jane Does do not address the availability, cost, or prevalence of insurance in this situation. Even assuming available and affordable insurance exists, the totality of the Rowland factors warrant an exception to the duty to protect in this category of case. Thus, the trial court properly granted Gardner's summary judgment motion. (See Vulk v. State Farm General Insurance Company (2021) 69 Cal.App.5th 243, 254
["[O]n this appeal from summary judgment, we may affirm on any basis supported by the record and the law"].)
DISPOSITION
The judgment is affirmed. Gardner shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: YEGAN, Acting P. J. BALTODANO, J.