Opinion
B163409.
10-14-2003
A. B., a Minor, etc., et al., Plaintiffs and Appellants, v. OGARA COACH COMPANY, Defendant and Respondent.
Law Offices of David H. Greenberg, David H. Greenberg and Lane E. Bender for Plaintiffs and Appellants. Huskinson & Brown and Paul E. Heidenreich for Defendant and Respondent.
A. B. and R. B. (plaintiffs), minor brother and sister appearing through their mother as guardian ad litem, appeal from a judgment in favor of defendant OGara Coach Company, LLC (OGara) in their action alleging they sustained personal injuries when OGaras employee sexually molested them. They argue that the trial court erred in sustaining OGaras demurrer as to their claims for negligent hiring, training, retention, and supervision, intentional infliction of emotional distress, and violation of their civil rights. They further argue that the trial court erred in denying leave to amend their complaint. On the record before us, we find no error in the trial courts ruling sustaining the demurrer without leave to amend, and so affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
OGara operates a luxury car dealership in Beverly Hills. Plaintiff minors are siblings who reside in Beverly Hills.[] According to the allegations of the complaint, which we accept as true for purposes of this appeal (see Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1042), on December 1, 2001, plaintiffs were standing outside OGaras dealership, looking in the showroom window after business hours. Jenaro Aguilar, an after-hours maintenance worker whom OGara knew to be a registered sex offender, was at work in the closed and locked dealership. He saw plaintiffs, unlocked the door of the dealership, and invited them into the showroom. He allowed them to sit inside a Bentley, then asked them whether they would like to see an Aston Martin. When they said yes, Aguilar got a key from a cabinet in the showroom and drove the car up from the back of the dealership. He then asked whether plaintiffs wanted to take a ride, wrote their names on a slip of paper, put this in the showroom cabinet, then drove the Aston Martin out of the dealership and onto nearby streets with plaintiffs riding inside.
Plaintiffs do not state their ages in their complaint or appellate briefs.
While Aguilar drove, he began to masturbate. R. B., in the front seat, saw this and asked him to drop them off at their school. When Aguilar stopped the car and R. B. opened her door, Aguilar said, "[I]t was nice meeting you," and shook her hand. His hand was wet with ejaculate. R. B. rubbed her hand on her pants, and A. B. saw what was on her hand and pants. Plaintiffs then ran home, followed by Aguilar in the car. They told their mother what had happened. She called the police, who later arrested Aguilar at the OGara dealership.
Plaintiffs sued OGara for negligent hiring, training, supervision, or retention of an unfit employee; intentional infliction of emotional distress; and sexual harassment in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et. seq.).[] OGara demurred on the grounds that it owed plaintiffs no duty as a matter of law; that Aguilars acts were unforeseeable, outside the scope of his employment, and could not be imputed to it; that its behavior was not outrageous; and that it had no business relationship with plaintiffs that is recognized by Civil Code section 51.9. In opposition, plaintiffs argued that looking in a shop window may establish a business relationship and that Aguilars access to the showroom and car keys after hours made his acts foreseeable. The court rejected this reasoning, sustained the demurrer without leave to amend, and entered judgment for OGara. Plaintiffs filed this timely appeal.
Aguilar was also named as a defendant. The record does not indicate what happened to plaintiffs claims against him.
DISCUSSION
I
In determining the adequacy of a complaint, an appellate court must treat it as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) The court must give the complaint a reasonable interpretation viewed as a whole and determine whether the complaint states facts sufficient to constitute a cause of action. (Ibid.) Any portion of a complaint which states a cause of action under any theory will withstand demurrer. (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 352.) The complaint is reviewed de novo. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.)
A
Plaintiffs argue the trial court erred in finding insufficient facts to state a claim for negligent hiring, training, supervising, or retaining of an unfit employee.
"[C]alifornia law on negligent hiring follows the rule and comment set forth in the Restatement Second of Agency section 213." (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842 (Evan F.).) Section 213 states that a principal is liable for harm caused by servants or agents if the principal was negligent or reckless in giving orders or setting regulations, employing "improper persons or instrumentalities in work involving risk of harm to others," supervising work, or permitting or failing to prevent "negligent or other tortious conduct by persons . . . upon premises or with instrumentalities under his control." (Rest.2d Agency, § 213, subds. (a)-(d).)
An employers duty not to be negligent in hiring is breached "only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed." (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214 (Federico).) Where an employers negligence in hiring depends on the likelihood that an employee will act in a particular harmful manner, it does not matter whether the employees acts are innocent, negligent, intentional, or criminal. (Evan F., supra, 8 Cal.App.4th at p. 836.) "In sum, the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way." (Doe v. Capital Cities, supra, 50 Cal.App.4th at p. 1055.) Both duty, and foreseeability as a factor in finding duty, are questions of law. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 401 [duty]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678 [foreseeability].)
Plaintiffs allege that OGara "failed to have proper procedures in place . . . [to] prevent [it] from . . . hiring . . . a registered sex offender" or to ensure that if such a person were hired, he "would be immediately terminated" once OGara learned of his status. They also allege that OGara failed to have in place procedures to ensure that its employees would prevent Aguilar from inviting children into the business premises after hours without parental permission, that no employee would allow children to sit in automobiles or drive children around without parental permission, and that "no employee[s], particularly . . . registered sex offenders, would be permitted to have any contact with children whatsoever . . . ." Plaintiffs further allege that OGara knew or should have known that Aguilar was a registered sex offender and thus was "incompetent and unfit to perform the duties for which he was employed" and posed "an undue risk to persons such as Plaintiffs" due to his employment. Based on their allegations, they conclude OGara was negligent for failing to terminate Aguilar immediately upon learning of his criminal record, for leaving him in charge of the dealership after hours without supervision, for not preventing unauthorized employees from having access to keys to OGaras cars, and for not instructing unauthorized employees not to take cars off the premises.
In arguing the sufficiency of their negligent hiring claim, plaintiffs rely on Evan F., supra, 8 Cal.App.4th 828, where the court found triable issues of material fact as to whether the employer had reason to know an employee was unfit. Evan F. involved a church that hired a pastor who had a record of child molestation. (Id. at pp. 831-833.) "[T]he theory of negligent hiring here encompasses the particular risk of molestation by an employee with a history of this specific conduct." (Id. at p. 837.) The particular work to be performed in that case involved regular, frequent, and potentially intimate contact with minors. Unsupervised exposure to children was clearly within the scope of employment, and such hiring necessarily put children at risk. (See ibid.) Unlike the situation in Evan F., in this case Aguilar was an after-hours maintenance worker. Plaintiffs do not allege that he was expected to have any contact with customers, young or old, during business hours, that he was hired to interact with children, or that he would normally encounter them at the workplace without going outside the scope of his employment.
Plaintiffs also invoke the Restatement Second of Agency. Section 213, comment d, states that an employer who should know that an employees qualities or characteristics make that person "likely to harm others in view of the work or instrumentalities entrusted to him" may be liable for negligently hiring the employee. (Rest.2d Agency, § 213, com. d, p. 459.) An employee may be unfit for a job due (among other things) to a "reckless or vicious disposition." (Ibid.) If an employer hires a "vicious" person to do work that "necessarily brings him in contact with others. . . ," the employer is liable for "harm caused by the vicious propensity." (Ibid.) Based on the facts alleged, Aguilars work did not necessarily bring him into contact with others, and certainly not with members of the public. Nor did his contact with plaintiffs result from performance of his job duties. Under comment d, employers must investigate employees fitness if "the work is likely to subject third persons to serious risk of great harm. . . ." (Ibid.) Aguilars work was unlikely to pose serious risk of great harm to anyone, including plaintiffs. Also, employers are not liable for the mere employing of "vicious" employees, but only for unreasonably selecting workers unfit for the "business in hand." (Ibid.) Plaintiffs argument that OGara had a duty not to hire and immediately to terminate any known registered sex offender would impose liability for hiring such employees for virtually any job, regardless of the persons fitness. Plaintiffs allege nothing to show how Aguilars status as a registered sex offender made him inherently unfit to work as an after-hours maintenance worker.
Federico is particularly instructive.[] In that case, the defendant hired a sex offender who had suffered prior convictions for molesting underage boys, to perform administrative duties and supervise student training at a hairstyling college. (Federico, supra, 59 Cal.App.4th at p. 1211.) His job duties involved no regular contact with minors, but he did have incidental contact with children getting their hair cut or visiting parents who were students at the school. (Id. at pp. 1211-1212, 1216.) After repeated contact with a students son, the employee obtained the students permission to take her son on a Sunday outing. (Federico, supra, 59 Cal.App.4th at p. 1212.) Following that excursion, the employee took the boy to the employees home and there sodomized him. (Ibid.)
Of the leading California appellate decisions addressing allegations of negligent hiring against an employer where an employee molested a minor, Federico is the only one involving employment where contact with minors was purely incidental to job duties. Other cas es are similar to Evan F. in that the employees involved were in positions where contact with minors and authority over minors were essential to the job. (See generally Evan F., supra, 8 Cal.App.4th at pp. 832-833, 843 [pastor]; Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1559-1560 [priest]; Juarez v. Boy Scouts of America, Inc., supra, 81 Cal.App.4th 377 at pp. 384-386 [scoutmaster].)
The Federico court found the defendant entitled to summary judgment as to negligent hiring. (Federico, supra, at pp. 1210, 1216-1217.) The court held that even if the defendant should have known of the employees prior record and "could have foreseen that [the employees] duties at the hairstyling school would entail some degree of contact" with underage males, "as a matter of law, hiring [the employee] did not constitute a breach of defendants limited duty to exercise reasonable care" in selecting employees. (Id. at p. 1213.) The court explained that because the employees prior convictions "did not involve students or customers of the hairdressing establishments" where he had worked, and because there was no particular connection between the employees abnormal sexual interest in children and his work, nothing in his history would have indicated to defendant that he "posed a threat of harm to minors he might encounter in the course of his work." (Id. at pp. 1214-1215.) The court also emphasized that "an employers liability must be determined in the context of the specific duties the work entails" — here, supervising adult students and performing administrative tasks. (Id. at p. 1215.) Though it was "foreseeable [the employee] would come into contact with young male[s]" at work, such "unavoidable encounters" could not support a finding of negligent hiring. (Ibid.) Finally, the court also rejected the plaintiffs claim for negligent supervision because the defendant had no reason to know or suspect that the employee had engaged in "inappropriate behavior on the job" involving minors prior to the incident in the case. (59 Cal.App.4th at p. 1216.)
In this case, as in Federico, Aguilars job duties involved no regular contact with minors, and his contact with plaintiffs was purely incidental. Moreover, unlike in Federico, the plaintiffs in this case do not allege that Aguilar had repeated prior contact with minors on the job, about which OGara should have been aware. Although plaintiffs allege he was a registered sex offender before the incident involving them, they do not allege that his prior conviction was for sexual misconduct involving minors and do not show the match between past record and employment risk, as called for in Federico. (59 Cal.App.4th at pp. 1214-1215.) Plaintiffs allege that Aguilars contact with them was foreseeable, but Federico holds that mere foreseeability of incidental contact with minors outside the scope of employment does not support liability for negligent hiring. (Id. at p. 1215.) Finally, because plaintiffs allege no prior inappropriate contact or misconduct with minors by Aguilar while at the dealership of which OGara was aware, plaintiffs fail to state a claim for negligent supervision under Federico.[]
Plaintiffs argue that Federico does not apply because the case was decided on summary judgment rather than demurrer. However, the Federico courts holdings as to questions of law apply to both pretrial and posttrial judgments involving the same or similar questions. (See also Doe v. Capital Cities, supra, 50 Cal.App.4th 1038, 1054-1055 [deciding negligent hiring cause of action based on questions of law on demurrer].)
Plaintiffs further arguments as to negligent training and retention also are unavailing. In their complaint, plaintiffs allege that OGara had a duty to terminate Aguilar immediately upon learning that he was a registered sex offender. California law creates no such general duty, and plaintiffs cite no authority for imposing such a duty. Rather, state policy encourages employment for all persons. (See Govt. Code, §§ 12900 et seq.) OGara was obliged to terminate Aguilar only if it had reason to know he was unfit for his specific job duties, as discussed above. As to training, OGara was obliged to provide Aguilar reasonable training as to the work duties he was to perform. (See Rest.2d Agency, § 213, com. c, p. 457 [employer must properly direct employee "as to the act to be done"].) It was not required to train employees not to commit all conceivable crimes or acts of misconduct clearly outside the scope of their employment.
Following the reasoning of Federico and the Restatement, we find as a matter of law that plaintiffs failed to state sufficient facts to support a cause of action for negligent hiring, training, supervising, or retaining of an unfit employee.
B
Although plaintiffs do not allege a cause of action against OGara for negligent entrustment, the facts they allege suggest that legal theory.
"Liability for negligent entrustment amounts to a determination whether a duty exists to anticipate and guard against the negligence of others." (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.) Under the Restatement, the general basis for liability for negligent entrustment is "the act of entrusting a potentially dangerous instrumentality to one who is likely to misuse it." (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 339 [citing Rest.2d Torts, § 308].) "It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." (Rest.2d Torts, § 308.) "Under the control of the actor" here means that the entrustee may use the entrusted instrumentality only with the entrustors consent. (Rest.2d, supra, com. a, p. 100.)
In their complaint, plaintiffs allege that Aguilar had access to keys to unlock the building, access to the showroom and cars in it, and access to the keys to cars at the dealership and to the Aston Martin in which he drove plaintiffs off the premises. They further allege that OGara was negligent for "permitting unauthorized employees to have access to car keys" on its premises and for leaving Aguilar "in charge of [OGaras] facility without supervision." The complaint thus implicitly alleges that OGara negligently entrusted the Aston Martin, car keys, building keys, and showroom access to Aguilar.
Access to the building keys and access to the dealership and the showroom would appear to be necessary for the work of an after-hours maintenance worker. As such, OGaras entrustment of these to Aguilar fits within the negligent hiring analysis we have discussed and rejected. Also, the building keys and the showroom access are not potentially dangerous instrumentalities of harm in the usual sense, for they did not directly cause the harm plaintiffs allege. Aguilar did not use the building keys to molest plaintiffs directly, and the alleged act of molestation did not even occur inside the showroom or dealership.
A claim of negligent entrustment of the Aston Martin also is problematic. Because entrustment normally depends upon the entrustors consent to the entrustees use of an instrumentality, generally there is no liability for negligent entrustment where someone uses a car without the owner or possessors permission and injures another, even though the key has been left in the ignition so that the car may easily be stolen. (See Richards v. Stanley (1954) 43 Cal.2d 60, 65-66 (Richards) [motorist who left key in ignition of car parked on street that was subsequently stolen had no duty to protect third parties from injury due to thiefs incompetent driving]; Avis Rent a Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 233 (Avis) [rental agency leaving cars in negligently attended lot with keys in ignitions not liable for injuries caused by thief]; Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1034 [following Richards].) This rule applies unless "special circumstances" exist. (Avis, supra, 12 Cal.App.4th at pp. 224-233.) In finding special circumstances, the court decides not whether a particular plaintiffs injury was reasonably foreseeable, but "`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 on the negligent party." (Avis, at p. 232, quoting Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6.) Generally, special circumstances exist when a vehicle owner or possessor has "invit[ed] or entic[ed] an incompetent driver to tamper with a vehicle" in such manner as to cause injury to another. (Avis, supra, 12 Cal.App.4th at pp. 229, 233.) Special circumstances have been found primarily where trucks or other heavy equipment requiring special skill to operate have been left unlocked and accessible to interlopers, not where automobiles or pickup trucks have been involved. (Avis, at pp. 228-232.)
In this case, plaintiffs allege no facts showing that OGara gave Aguilar permission to drive the Aston Martin or to use other cars or car keys. Aguilar apparently was an unauthorized user like the thieves in Richards or Avis, so for OGara to be liable, special circumstances must apply. OGaras luxury cars are not heavy equipment requiring special skills to operate, and they were not left negligently unattended in such manner as to invite incompetent operation. Rather, OGaras cars were left in a locked building without keys in the ignitions. Plaintiffs do not allege that Aguilar drove the Aston Martin incompetently or caused plaintiffs injury through incompetent driving. Moreover, as with the building keys and showroom access, the Aston Martin was not an instrumentality of harm in the normal sense. Special circumstances cases normally involve situations where vehicles harmed plaintiffs directly. (Avis, supra, 12 Cal.App.4th at pp. 224-231.) Here, although Aguilar drove plaintiffs in the car and masturbated in the car, the car itself caused plaintiffs no harm; the injury that was inflicted could have occurred without use of the car.
Plaintiffs do not allege sufficient facts to support a cause of action for negligent entrustment.
C
Plaintiffs argue the trial court erred in finding insufficient facts to state a claim for intentional infliction of emotional distress (IIED).
"The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiffs emotional distress is actually and proximately the result of the defendants outrageous conduct." (Conley v. Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1133.) To be "outrageous," conduct must be "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)
Plaintiffs allege they were terrified of being hurt or molested by Aguilar when he masturbated, and they were frightened when he followed them home. Aguilar was an after-hours maintenance worker, and plaintiffs do not allege OGara hired him to admit minors into the showroom after hours or drive them around. His acts impacting plaintiffs were not within the scope of his employment, and as such, cannot be imputed to OGara through the doctrine of respondeat superior.[] (See Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 ["For the doctrine of respondeat superior to apply, the plaintiff must prove that the employees tortious conduct was committed within the scope of employment."].)
The various cases plaintiffs cite where institutions were found potentially liable for intentional infliction of emotional distress involved either direct action by the employer or employees outrageous acts within the scope of employment that were imputed to employers. (See generally Conley v. Roman Catholic Archbishop, supra, 85 Cal.App.4th at p. 1126 et seq. [direct]; Agarwal v. Johnson (1979) 25 Cal.3d 932, 947-948, disapproved on another ground in White v. Ultramar (1999) 21 Cal.4th 563, 571 [imputed]; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496-497 [company officer allegedly ratified and confirmed supervisors abusive acts].)
To support a theory of direct liability for IIED, plaintiffs allege that OGara "knew of . . . Aguilars outrageous conduct, and ratified or authorized" it. But plaintiffs allege nothing to support this claim save that OGara knew Aguilar was a registered sex offender and failed to terminate him prior to the incidents at issue. They also allege that OGara acted intentionally or recklessly with regard to their emotional distress, repeating the allegations supporting their negligent hiring argument and alleging no further facts. As discussed above, OGaras conduct in employing Aguilar was not negligent under Federico. It thus does not rise to the level of intentionally or recklessly outrageous conduct necessary for IIED.
Because OGara is not imputedly liable for Aguilars acts outside the scope of employment, and because based on plaintiffs allegations, OGara did nothing outrageous, reckless, or with intent to cause plaintiffs emotional distress in hiring and retaining him, plaintiffs failed to state sufficient facts to constitute a claim for intentional infliction of emotional distress.
D
Plaintiffs argue the trial court erred in finding insufficient facts to state a claim for violation of civil rights pursuant to the Unruh Civil Rights Act (the Act).
The main purpose of the Act is to prevent discrimination on the basis of specified classifications.[] (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1502.) The Act "must be liberally construed to accomplish this purpose." (Id. at p. 1502.) As part of this purpose, the Act protects Californians right to be free from violence or intimidation on account of membership within a specified classification.[] It creates a cause of action for sexual harassment in the context of business, service, or professional relationships where the plaintiff cannot easily terminate the relationship.[]
"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, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).)
"All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute . . . ." (Civ. Code, § 51.7, subd. (a).)
The four elements a plaintiff must prove to show sexual harassment under the Unruh Act include: a "business, service, or professional relationship between the plaintiff and defendant," including "Physician, psychotherapist, or dentist"; "Attorney, holder of a masters degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer . . . ."; "Executor, trustee, or administrator"; "Landlord or property manager"; "Teacher"; or "A relationship that is substantially similar to any of the above" (Civ. Code, § 51.9, subd. (a)(1)(A)-(F)); and an "inability by the plaintiff to easily terminate the relationship." (Civ. Code, § 51.9, subd. (a)(3).)
In their complaint, plaintiffs allege that R. B. is female and hence within a protected classification under the Act;[] that OGara is a business establishment covered under the Act; that there was a business, service, or professional relationship between R. B. and OGara; that Aguilar engaged in unwelcome sexual advances or visual or physical conduct of a sexual or hostile nature; and that Aguilar committed acts of violence or intimidation by threat of violence against R. B. because of her sex. But because plaintiffs allege no facts to show that Aguilars acts were within the scope of his employment, these acts cannot be imputed to his employer through vicarious liability. (See Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209.) Plaintiffs also offer no facts in the complaint to support their allegations that there was any business relationship between OGara and plaintiffs under Civil Code section 51.9, nor facts to show that OGara in any way directly discriminated against plaintiffs or committed acts of violence or intimidation against them.
In their appellate briefs, plaintiffs argue alternatively that, as minors, they are both within a protected classification under the Act based on age.
Because Aguilars acts may not be imputed to OGara, and because plaintiffs allege no facts to support a theory of direct liability, we find that plaintiffs did not allege facts sufficient to constitute a cause of action under the Act.
II
Plaintiffs argue that the trial court abused its discretion in denying them leave to amend their complaint. When a demurrer is sustained without leave to amend, the reviewing court must decide whether there is a reasonable possibility the defect can be cured by amendment; if it can be, the trial court has abused its discretion in denying leave to amend and the ensuing order of dismissal must be reversed. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.) An appellate court must liberally permit amendment if the trial court has not given a fair opportunity to correct any defects. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) The burden of proving reasonable possibility of amendment is on the plaintiff. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.)
Plaintiffs argue they can state a cause of action for negligent entrustment of the Aston Martin "where it was foreseeable that Mr. Aguilar may [sic] use that vehicle to commit other criminal sexual acts . . . if left unsupervised on the premises after hours and on weekends with access to the showroom and keys to the cars." They further claim that there are other facts either not present or not emphasized in their complaint, including that OGaras dealership is located in a residential neighborhood where children often were present; that children in general are attracted to "shiny, expensive, prestigious cars" like those OGara handles; that OGara knew or should have known Aguilar would "encounter" children walking "on or about" the dealership or looking in the showroom window after hours; and that OGara knew or should have known that providing Aguilar with unsupervised access to the showroom and car keys after hours created a substantial risk to children by giving him an opportunity to prey upon those who came by the dealership.[]
Plaintiffs offered the same basic facts and arguments at the demurrer hearing.
Plaintiffs additional facts regarding negligence, some of which were implicit in their complaint, do not change the foregoing analysis as to negligent hiring or entrustment. Their allegations chiefly concern the foreseeable presence of children outside OGaras dealership. In Federico, the court held that the foreseeable incidental presence of children inside the workplace did not make the employees crime sufficiently foreseeable to impose a duty on his employer. (Federico, supra, 59 Cal.App.4th at p. 1216.) It is even less so here. The incidental presence of children outside a closed and locked workplace in the present case also does not.
Regarding their causes of action for IIED and violation of civil rights under the Unruh Act, plaintiffs argued at the demurrer hearing that if children look in the window of a closed store, it creates a business relationship with the store owner. They further stated that if given leave to amend, they could allege facts to bring their claim within the Unruh Act. In their appellate briefs, plaintiffs propose no new facts to support their IIED or civil rights claims save those additional facts offered to show negligence.
The additional facts concerning foreseeability, which are insufficient to prove negligence under Federico, are insufficient to show outrageous intentional or reckless conduct by OGara directly. They also do not show direct acts of discrimination, violence, intimidation, or sexual harassment by OGara. Nor do they show that Aguilar was acting within the scope of his employment to support a theory of vicarious liability.
Finally, the mere act of looking in a showroom window of a closed business cannot establish a business relationship of the sort contemplated by Civil Code section 51.9. That section applies to business, service, or professional relationships "substantially similar" to those in an enumerated list. (Civ. Code, § 51.9, subd. (a)(1)(F).) This list includes, inter alia, medical professionals; attorneys; real estate agents and appraisers; bankers, accountants, and other financial professionals; landlords and property managers; and teachers. (Id., subd. (a)(1)(A)-(E).) Also, there must be an "inability by the plaintiff to easily terminate the relationship." (Id., subd. (a)(3).)
Even if looking in the showroom window of a closed business could be said to establish a business relationship of some sort, it would not be one substantially similar to the professional relationships enumerated in Civil Code section 51.9, subdivision (a). Here, plaintiffs allege no facts to show that they could not easily have walked away from the dealership before Aguilar, acting outside the scope of his employment, invited them in.
Plaintiffs have not met their burden of showing reasonable possibility of amendment that would cure the insufficiencies of their complaint.
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
We concur: VOGEL (C.S.), P.J. and CURRY, J.