Opinion
G053270
04-04-2017
OMAR CARRERA et al., Plaintiffs and Appellants, v. MADDEN ALEFOSIO et al., Defendants and Respondents.
Harting, Simkins & Ryan, Gary S. Simkins, for Plaintiffs and Appellants. Pettibone & Associates, Douglas J. Pettibone, Jesse T. Farris, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00759881) OPINION Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Request for judicial notice. Judgment reversed and remanded. Request denied. Harting, Simkins & Ryan, Gary S. Simkins, for Plaintiffs and Appellants. Pettibone & Associates, Douglas J. Pettibone, Jesse T. Farris, for Defendants and Respondents.
* * *
Plaintiffs and appellants Omar Carrera and his wife, Brandy Bizarro appeal from a judgment in favor of defendants, Madden Alefosio, Jaime Alefosio, and Alliance Direct Lending, Inc. (Alliance) (collectively defendants) following the trial court's order granting defendants' motion for summary judgment. Omar was seriously injured at an Alliance holiday party when Randolph Sagiao, who worked for Alliance, punched Omar in the face while intoxicated. Plaintiffs contend the court erred in concluding there exist no triable issues of fact on three issues: (1) whether Alliance can be held vicariously liable for Sagiao's torts under the doctrine of respondeat superior; (2) whether defendants were directly negligent in failing to regulate alcohol consumption of party attendees, failing to provide security for the event, and failing to intervene and stop Sagiao from disrupting the party; and (3) whether Alliance is the alter ego of Madden and Jaime. Plaintiffs also contend defendants failed to give proper notice of the summary judgment hearing.
We refer to these parties by first name as a convenience to the reader. We do not intend this informality to reflect a lack of respect. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
An employer may be vicariously liable for the torts its employee commits while acting within the scope of his employment. Scope of employment is generally a question of fact. Here, the trial court's decision to dispose of the case by summary judgment as a matter of law was improper. However, defendants met their burden to establish plaintiffs cannot prove negligence, so they are entitled to summary adjudication on the negligence causes of action. We do not reach the alter ego issue because the trial court should rule in the first instance. Finally, we find no error in defendants' notice of the summary judgment hearing. We reverse the judgment and remand to the trial court for further proceedings consistent with our opinion.
FACTS AND PROCEDURAL BACKGROUND
Alliance is in the direct mail business with approximately 60 employees at its corporate office. At the time of the incident giving rise to this lawsuit, Madden was the president, secretary, and treasurer of Alliance and Jaime was an employee. Sagiao worked for Alliance selling direct mail to car dealerships. Sagiao and Madden are cousins.
In late 2012, Alliance entered into a written contract with The Clubhouse at Anaheim Hills Golf Course (Clubhouse) to host a company holiday party to include hors d'oeuvres, a buffet dinner, dessert, and a professional bartending staff for serving alcohol (the Contract). Clubhouse is owned and operated by the City of Anaheim (the City). The Contract provided Clubhouse reserved the right to cancel beverage service if any attendee possessed alcohol not purchased from Clubhouse or if there arose circumstances judged by management to be endangering to guests, clients or property. The Contract stated Clubhouse may require the host to be responsible for payment of security guards for "certain events." Management reserved the right to require a security deposit, but apparently none was required and no security guards were hired. It appears Alliance paid for three drink tickets per person as part of the catering cost for the party.
Madden then entered into an oral agreement for Omar to provide DJ services for the party. Alliance requested and received executed release of liability waivers from 60 of its invitees, including Sagiao. However, it appears plaintiffs either were not asked to, or did not, sign the waivers.
On the day of the event, plaintiffs and another assistant set up their DJ equipment and provided DJ services for the party. Alliance gave out employee recognition awards. Sagiao received a plaque for bringing in the most sales for the year. According to plaintiffs' operative complaint, at approximately 10:15 p.m., Sagiao took the microphone at the DJ table and began to rap and disrupt the party, so Omar turned the sound off. Plaintiffs allege Sagiao appeared intoxicated and was slurring his words and becoming very aggressive. They allege Sagiao began to curse and yell and struck Omar in the face, knocking him unconscious. Medical records show Omar suffered blunt head and facial trauma, a concussion, and multiple facial fractures, including a broken nose, an orbital fracture, and a fractured cheekbone.
Sagiao, who stands six feet two inches tall and weighs 360 pounds, had consumed four drinks during the evening. Sagiao was later charged with felony battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and felony assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). In addition to these counts, the felony complaint alleged an enhancement for great bodily injury (Pen. Code, § 12022.7, subd. (a).) Sagiao pled guilty to both counts and admitted the enhancement, in exchange for a reduced sentence.
On Sagiao's advisement and waiver of rights for a felony guilty plea, Sagiao declared, "In Orange County, California, on December 15, 2012, I willfully and unlawfully punched [Omar] one time causing him to suffer great bodily injury."
Plaintiffs filed suit against Madden, Jaime, Sagiao, Alliance, At-Your-Service Hospitality, Inc. (At-Your-Service), and the City. They allege Alliance is the alter ego of Madden and Jaime.
Plaintiffs allege the City contracted with At-Your-Service to cater, manage and operate events at Clubhouse, including the Alliance holiday party. At-Your-Service and the City settled and are not parties to this appeal. It appears from the superior court file Sagiao remains as a defendant in the case though he has not made an appearance in our court. The trial court stayed its proceedings pending our resolution of this appeal.
Plaintiffs' first cause of action for assault, second cause of action for battery, and third cause of action for negligence are alleged against Sagiao only. These causes of action are the springboards from which plaintiffs seek to hold defendants vicariously liable for Sagiao's conduct. Thus, plaintiffs allege Sagiao was in the course and scope of his employment for Madden, Jaime, and Alliance at the time of the party.
The fourth cause of action for negligence is alleged against Madden, Jaime, Alliance, At-Your-Service, and the City. The allegations pertinent to each defendant are not specified. Plaintiffs allege all named defendants owed plaintiffs a duty to exercise ordinary care in the use, maintenance, or management of the property in order to avoid exposing plaintiffs to an unreasonable risk of harm. It alleges the duty existed even if the harm was caused by the criminal conduct of an agent or employee. Plaintiffs allege defendants were negligent and careless in their use, control, and management of the property, because they maintained the property in such a way as to increase the risk of criminal activity. Plaintiffs allege defendants negligently failed to act as reasonably prudent persons by, among other things, failing to regulate the alcohol consumption of attendees at the party, failing to provide security at the event, and failing to intervene and stop Sagiao from disrupting the party. They allege Omar suffered serious physical and emotional injury when he was "violently, unlawfully, intentionally, suddenly and maliciously beaten" by Sagiao.
The fifth cause of action for negligent infliction of emotional distress names Madden, Jaime, Alliance, At-Your-Service, and the City. Plaintiffs allege Brandy was present at the scene and suffered significant serious emotional distress and loss of companionship.
Defendants filed a motion for summary judgment or alternatively summary adjudication asserting there is no basis to impose liability under the doctrine of respondeat superior, Alliance is not the alter ego of Madden or Jaime, and plaintiffs cannot establish negligence. Defendants submitted declarations from Madden, Jaime, and Sagiao and deposition excerpts from Omar and Sagiao in support of their motion. Plaintiffs did not object to any of defendants' evidence.
Plaintiffs opposed the motion and filed a request for judicial notice of the felony complaint, minutes, and felony guilty plea from Sagiao's felony assault and battery case involving Omar. Plaintiffs submitted deposition excerpts from Omar, Sagiao, Madden, and Jaime, as well as discovery responses, the police report from the incident, medical records, the Contract, a memo concerning the party, Sagiao's social media pages, and Secretary of State information regarding Alliance. Defendants filed objections to certain of plaintiffs' evidence.
The court granted the motion finding there exist no triable issues of material fact and defendants are entitled to judgment as a matter of law. Without deciding whether Sagiao was an employee or independent contractor, the court assumed Sagiao was an employee but found his assault on Omar was not part of his employment. The court concluded the assault was motivated by personal malice and there could be no liability based on respondeat superior because the misconduct did not arise from the conduct of the employer's enterprise, but instead arose from a personal dispute.
The trial court did not rule on defendants' evidentiary objections or plaintiffs' request for judicial notice.
As to plaintiffs' contention defendants owed them a duty of care to prevent the assault or provide security, the court found plaintiffs offered no facts to show an altercation between Omar and Sagiao was foreseeable to defendants through prior history between Omar and Sagiao or a known propensity of violence on the part of Sagiao. The court concluded Sagiao's intoxication did not mean the assault was foreseeable such that defendants owed plaintiffs a duty of care to provide security for the party.
Having found for defendants on the vicarious and direct liability issues, the court did not reach the alter ego issue. The court entered judgment in favor of defendants, and this appeal followed.
DISCUSSION
1. Summary Judgment Standards and Review
The underlying purpose for summary judgment is to resolve litigation by avoiding needless trials. (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313.) Code of Civil Procedure section 437c, subdivision (c) provides, "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." A defendant may bring a motion on the ground there is a complete defense to the action or the plaintiff cannot prove one of the required elements of the case. (Id., subds. (o)(2), (p)(2); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) If the defendant meets that burden, the burden shifts to the plaintiff to produce evidence there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Caldwell at p. 203.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)
We review a summary judgment de novo. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860. ) "[W]e liberally construe plaintiff's evidentiary submissions and strictly scrutinize defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff's favor." (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) 2. Vicarious Liability under the Doctrine of Respondeat Superior
Plaintiffs contend there is a triable issue of material fact as to whether defendants are vicariously liable under the doctrine of respondeat superior. They argue Sagiao was an employee of Alliance and acting in the course and scope of his employment at the time of the incident. The trial court did not reach the first issue, and neither do we, because ultimately it will be up to the trier of fact to make that determination. On the second issue, the trial court found as a matter of law Sagiao was not acting within the scope of employment and his assault on Omar was motivated by personal malice, thereby preventing imposition of vicarious liability. We disagree the issue can be resolved as a matter of law.
The issue of scope of employment is generally a question of fact for the jury. (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289 (Kephart).) When the facts are undisputed and no conflicting inferences are possible, the issue may be decided by the court as a question of law. (Ibid.)
Although an employer is not strictly liable for all actions of its employees during working hours (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 (Farmers)), under the doctrine of respondeat superior, an innocent employer may be liable for the torts its employee commits while acting within the scope of his employment. (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 481 (Yamaguchi).) The term "'scope of employment'" is interpreted broadly, and the employer's liability extends beyond his or her actual or possible control of the employee to include risks inherent in or created by the enterprise. (Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499, 505 (Purton).) The fact an employee is not engaged in the ultimate object of his or her employment at the time of the wrongful act does not preclude attribution of liability to an employer. (Ibid.)
"Equally well established, if somewhat surprising on first encounter, is the principle that an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297 (Lisa M.).) Thus, vicarious liability is not dependent on the employer's undertaking any act or upon any fault of the employer. (Purton, supra, 218 Cal.App.4th at p. 505.)
But the scope of vicarious liability is not boundless. For the employer to be liable for an intentional tort, the employee's act must have a "'causal nexus to the employee's work.'" (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521.) "An injury arising out of a work-related dispute has such a causal nexus, while an injury inflicted out of the employee's personal malice, not engendered by the employment, does not." (Id. at p. 1522.) An employer will not be held liable under the respondeat superior doctrine for conduct that occurs when the employee "substantially deviates from the employment duties for personal purposes" or acts out of personal malice unconnected with the employment, or where the conduct is "'so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citations.]'" (Farmers, supra, 11 Cal.4th at pp. 1003-1005.)
Numerous cases have addressed an employer's liability for the intentional and/or criminal acts of its employees. Going back over 70 years, our Supreme Court in Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652 (Carr) reversed a directed verdict in favor of an employer whose employee assaulted a third party. While working on a construction site, one of the defendant's employees threw his carpenter's hammer at another worker, striking him on the head and severely injuring him. (Id. at p. 653.) The court stated if an employee inflicts an injury out of personal malice not engendered by employment, the employer is not liable. (Id. at p. 656.) However, in Carr, the evidence indicated the injury to the plaintiff was an outgrowth of the employment because the altercation leading to the injury arose solely over the performance of the assailant's duties, and his entire association with the plaintiff arose out of his employment on the building under construction. (Id. at p. 657.)
One year later, the court decided Fields v. Sanders (1947) 29 Cal.2d 834, 839, 844, and found as a matter of law an assault and battery arising from an altercation following a car accident was within the scope of employment because the employee was engaged in his employer's business while operating the truck along the highway. The court noted any "personal element" entering in the verbal bout and plaintiff's provocative conduct in cussing did not alter the conclusion. (Id. at p. 840.)
Several courts of appeal have found an employer may be liable for the intentional torts or criminal behavior of its employee. In the leading case of Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 614 (Rodgers), a jury found the defendant employer liable for an assault by its employees. The plaintiffs were employed as heavy equipment operators on a job site, and the defendant was a subcontractor on the same job. (Ibid.) It was not unusual for the defendant's employees to drink beer after their shift. (Ibid.) One night, two employees had three or four beers then approached the plaintiff who was operating a bulldozer. (Ibid.) They asked the plaintiff for a ride, but he refused, and a fistfight ensued. (Id. at p. 615.) The defendant argued the assault occurred after the work shift ended and was the result of personal malice unrelated to the work. (Id. at p. 619.) The court rejected both arguments. (Ibid.)
As to the first argument, the court explained one way to determine whether a risk is inherent in, or created by, an enterprise, is to ask whether it was generally foreseeable. (Rodgers, supra, 56 Cal.App.3d at p. 618.) For purposes of respondeat superior, foreseeability means "in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." (Id. at p. 619.) The court concluded the dispute which was the proximate cause of the assault arose out of the employment. (Id. at pp. 621-622.) It was reasonable to expect the defendant's employees would come into contact with another contractor's employees on the same construction job. (Id. at p. 622.) The risk of such association extends to expressions of normal human traits including occasional emotional flare-ups and propensity for violence. (Id. at pp. 622-623.) The dispute arose over the rights and privileges of an off-duty employee. (Id. at p. 623.)
As to the second argument, citing Carr, supra, 28 Cal.2d at page 654, the Rodgers court agreed if the assault was motivated by personal malice not engendered by the employment, the employer is not vicariously liable. (Rodgers, supra, 56 Cal.App.3d at p. 621.) However, the court concluded there was no evidence of personal malice unrelated to employment, because the assailant and his victim were strangers. (Ibid.) The court affirmed the jury's verdict, finding it was supported by substantial evidence. (Id. at pp. 624, 632.)
In Yamaguchi, an employee threw hot oil on a police officer who responded to a report of a knife stabbing at a restaurant. (Yamaguchi, supra, 106 Cal.App.4th at pp. 708-809.) The Court of Appeal concluded the trial court erred in ruling as a matter of law the employee's conduct was within the scope of his employment for purposes of respondeat superior. (Id. at p. 486.) The court stated whether the employee's decision to perpetrate the assault arose from the performance of his job duties or was instead a substantial deviation from those duties and unforeseeable, was a factual question not conclusively resolved by the evidence. (Id. at p. 485.) There was plainly a factual dispute in regard to the employee's motivation in performing the act and the causal nexus between his act and his employment. (Id. at p. 486.) The two had engaged in work-related disputes previously, and it could be inferred the stabbing arose from a work-related dispute, which then escalated to the point the employee threw the hot oil injuring the police officer. (Id. at p. 482.) While the employee's conduct was not part of his job, a reasonable trier of fact could find a cook's use of a knife and hot oil to attack his assistant in the kitchen was a risk "broadly incidental" to the operation of a restaurant. (Ibid.)
More recently, a different panel of our court decided Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373. The trial court entered summary judgment in favor of the defendant employer after one of its employees physically assaulted a customer at a retail store. (Id. at p. 376.) The attack occurred as a customer was asking the employee about the price for a case of motor oil. (Id. at pp. 377-378.) The court framed the issue as "whether an employee's physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment." (Id. at p. 380.) Citing Carr, supra, 28 Cal.2d at page 656, the court noted, "'Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to "physical act[s] of aggression." [Citations]. "'In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup. . . . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.' [Citations.]" [Citation.]'" (Flores. at p. 380.) The court concluded anger generated during the interaction between the employee and victim could not be "so tidily compartmentalized" as a matter of law. (Id. at p. 381.) The court reversed the summary judgment stating, "To be clear, we are not now concluding AutoZone is necessarily liable, on a theory of respondeat superior, for [the employee's] violent assault in this case. Given the posture of this appeal, the only issue before us is whether the trial court could properly determine, as a matter of law, that it was not liable on that theory. We conclude only that the court could not properly make that determination, and that the claim must consequently be remanded to the trial court for further proceedings." (Id. at pp. 383-384.)
So it is here. Examining the evidence before us, we cannot conclude as a matter of law that defendants are not vicariously liable for Sagiao's assault on Omar. The evidence presents an incomplete picture of the circumstances surrounding the assault. We note the declarations and deposition transcripts focus mostly on whether Sagiao should be considered an employee or independent contractor, and on whether Madden and Jaime can be liable as alter egos of Alliance. The police report, however, sheds some light on the incident.
The police report is attached to the declaration of plaintiffs' counsel, Gary S. Simkins. Defendants did not object to its admission below. (See Code Civ. Proc., § 437c, subd. (b)(5) [evidentiary objections not made at hearing waived].) In their supplemental brief, defendants contend the police report was submitted for a limited purpose as to whether Alliance could hire or fire Sagiao, it should not be expanded beyond that purpose, and it constitutes inadmissible hearsay. To the extent defendants belatedly object to the police report now, the objection is overruled.
According to the police report, a witness stated throughout the night he had seen Sagiao trying to rap and sing along with the songs while using the DJ's microphone and could tell he was intoxicated because he was slurring his words and could not finish the lyrics as he sang. Sagiao was attempting to sing along with a song when the microphone was cut off. Sagiao became upset and approached the DJ table, then started yelling at one of the DJ's. Although this witness did not see the DJ do anything to Sagiao, Sagiao reached across the table and punched the DJ with his right fist. Another witness states Omar attempted to intervene to diffuse the situation before Sagiao hit him. The report also states Madden told the officer although he did not witness the assault at the holiday party, he was not surprised Sagiao punched somebody as he has a bad temper. Notably, Madden and Sagiao are cousins. It will be for the jury to conclude how the dispute arose, including what was said, Sagiao's motivation, the relationship between Sagiao and Omar, whether there were any other interactions between them earlier in the evening, and whether the spark of anger was a risk inherent in or created by the enterprise or was the result of personal malice unrelated to Sagiao's work. On the facts before us, we cannot make a determination as a matter of law.
Defendants' reliance on Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.3d 947 is misplaced (Golden West). There, the trial court denied summary judgment to employer, and the Court of Appeal granted a petition reversing the order. (Id. at p. 949.) The defendant's employee went to a bar several hours after his workday ended. (Id. at pp. 951-952) At the time, the employee was working as a stage manager and had been sent to Palm Springs from Los Angeles to set up equipment for a telecast of a professional baseball game. (Id. at p. 953.) He was paid on a per diem basis. (Ibid.) Apparently the plaintiff took exception to something the employee said to his wife, and both men proceeded to the parking lot outside the bar where a fight ensued. (Ibid.) He was not at the bar at the request of his employer but made his own choice to go there. (Id. at p. 952.) The court noted most cases uniformly involve factual situations where conflicting inferences can be drawn from the same extrinsic facts, (id. at p. 956), but in the case before the court, there were no conflicting inferences present. (Id. at p. 958.) The court found there was no inherent risk incidental to employment of a television technician importing foreseeability. (Ibid.) "To invoke the doctrine of respondeat superior here would be to sanction a rule which would impose the liability of an insurer on all employers for every willful tortious act of their employees committed while off duty. Merely to state such a proposition is enough to discredit it, and we do." (Ibid.)
Golden West is distinguishable because in Golden West the employee was clearly off work at the time of the assault and had been for hours, so the analysis did not squarely address personal malice as a factor contributing to the scope of employment analysis. Here, Sagiao was present at the holiday party hosted by defendants, and courts have found an employee's attendance at a work holiday party to be within the scope of employment. (McCarty v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 677, 682 [Christmas party was of conceivable benefit to employer because it fostered company comradeship and provided occasion for discussion of company business]; Purton, supra, 218 Cal.App.4th 499 [trier of fact could conclude the party and drinking of alcoholic beverages benefitted Marriott by improving employee morale and furthering employer-employee relations].)
Here it is a question of fact whether Sagiao was acting within the scope of employment, and specifically whether he acted with personal malice. (See Rodgers, supra, 50 Cal.App.3d 608 [jury determined dispute arose out of employment and no personal malice]; Kephart, supra, 136 Cal.App.4th 280 [jury determined employee's act of road rage motivated entirely by personal malice or compulsion]; Monty v. Orlandi (1959) 169 Cal.App.2d 620 [jury determined assault was personal altercation in course of employment].) In finding there exists a triable issue of material fact for a jury on this issue, we are mindful some but not all of the above cases involved an intoxicated assailant. In those that did (Rodgers and Golden West), the court did not predicate its holding on that factor. One may commit an assault and battery whether intoxicated or not, so we do not consider Sagiao's intoxication determinative on the respondeat superior issue, though it is one factor the jury may consider. 3. Direct Liability for Negligence
Plaintiffs contend defendants were directly negligent. They argue only one theory of negligence liability: Judicial Council of California Civil Jury Instruction (2017) CACI No. 1009B, "Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control." Plaintiffs miss the mark. CACI No. 009B concerns premises liability. The instruction is for use if a dangerous condition on property causes injury to an employee of an independent contractor hired to perform work on the property.
CACI No. 1009B provides, "[Plaintiff] claims that [he/she] was harmed by an unsafe condition while employed by [plaintiff's employer] and working on [defendant]'s property. To establish this claim, [plaintiff] must prove all of the following: 1. That [defendant] [owned/leased/occupied/controlled] the property; 2. That [defendant] retained control over safety conditions at the worksite; 3. That [defendant] negligently exercised [his/her/its] retained control over safety conditions by [specify alleged negligent acts or omissions]; 4. That [plaintiff] was harmed; and 5. That [defendant]'s negligent exercise of [his/her/its] retained control over safety conditions was a substantial factor in causing [plaintiff]'s harm."
CACI No. 1009B has no application to the defendants before us. Defendants did not own, lease, occupy or control Clubhouse. They merely contracted with the City to hold a party there. Plaintiffs do not identify the allegedly unsafe condition. Perhaps they consider Sagiao himself to be the unsafe condition, but they cite no authority for such a theory.
Maybe an argument can be made that CACI NO. 1009B would apply to the City or At-Your-Service, but those defendants are not before us.
Apart from this faulty theory, which is the only theory advanced in plaintiffs' briefing, plaintiffs' operative complaint alleges defendants were negligent in three ways: failing to regulate the alcohol consumption of attendees at the party, failing to provide security at the event, and failing to intervene and stop Sagiao from disrupting the party. Plaintiffs do not supply a legal basis for imposing direct negligence liability upon an employer for these alleged failures. In short, they have advanced no viable legal theory for why the court should impose a duty upon defendants to regulate alcohol consumption of attendees, to provide security or to intervene and stop Sagiao from disrupting the party.
"'In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages.' [Citation.] The duty element is the defendant's legal duty to protect the plaintiff from harm. [Citation.] Whether a duty to the plaintiff exists in any particular negligence case is a question of law. [Citation.] Courts use the concept of duty to restrict the otherwise potentially unlimited liability flowing from a negligent act. [Citation.] A determination that a duty exists amounts to a policy decision that a particular plaintiff should be protected [citation], i.e., 'that, in cases of a particular type, liability should be imposed for damage done' [citation ]." (Smith v. Freund (2011) 192 Cal.App.4th 466, 472.)
As a general rule, "one owes no duty to control the conduct of another, nor to warn those endangered by such conduct." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203; see Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013.) Such a duty may arise, however, if "'(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.'" (Ibid.) Here, plaintiffs have not shown the existence of a special relationship between them and defendants. Defendants merely hired Omar to supply DJ services at the holiday party. At most this relationship was contractual. Lacking a special relationship, defendants are not liable to plaintiffs for Sagiao's conduct.
The alleged failure to provide security is a concept relating to landowners and landlords. "It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition. [Citations.] "In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674.) Here, defendants are not the owners or landlords of Clubhouse. They are a private company and its principals who contracted with the City to hold a party on the City-owned property. Defendants had no legal duty to provide security under the facts of this case.
Plaintiffs do not allege defendants breached a contractual obligation. Although the Contract states management reserved the right to require Alliance to pay for security guards for "certain events" and to require a security deposit, there is no evidence the City required either from defendants.
Finally, "as a general rule, an individual or entity does not have a duty under the common law to come to the aid of another person whom the individual or entity has not injured." (Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 335.) Hence, defendants were not required to intervene and stop Sagiao from disrupting the party.
Plaintiffs do not allege defendants knew of Sagiao's bad temper and were therefore negligent in allowing him to attend or consume alcohol at the party.
Besides owing no duty to plaintiffs, defendants' furnishing of alcohol was not the proximate cause of plaintiffs' injuries. At most, Alliance, Madden, and Jaime were social hosts who cannot be held liable for the drunken acts of Sagiao, a party attendee. "[N]o social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages." (Civ. Code, § 1714, subd. (c); see also Bus. & Prof. Code, § 25602, subd. (b) ["No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage"].) The Legislature has determined the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person. (Civ. Code, § 1714, subd. (b); Bus. & Prof. Code, § 25602, subd. (c).) Here, Sagiao was the proximate cause of plaintiffs' injuries, not defendants.
Defendants' request for judicial notice of Senate Bill No. 1645 is denied. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326 [appellate court need not consider documents not in trial court record].)
While this result may seem at odds with our conclusion a triable issue of fact exists on the respondeat superior issue, Civil Code section 1714 and Business and Professions Code section 25602 do not immunize an employer from vicarious liability. (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 808.) The issues of vicarious liability and direct liability for negligence require entirely separate analyses.
Plaintiffs' cause of action for negligent infliction of emotional distress fares no better because it is not an independent tort. (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 875-876.)
Defendants met their initial burden to establish plaintiffs cannot prove one of the required elements of their case. (Code Civ. Proc., § 437c, subd. (p)(2) [defendant has met burden of showing cause of action has no merit if party has shown one or more elements of cause of action, even if not separately pleaded, cannot be established].) Plaintiffs failed to produce evidence there is a triable issue of material fact on any viable legal theory. (Code Civ. Proc., § 437c, subd. (p)(2) [burden shifts to plaintiff show triable issue of one or more material facts exists].) For this reason, defendants are entitled to summary adjudication of the negligence causes of action. 3. Alter Ego
In their motion for summary judgment or adjudication, defendants contended Alliance is not the alter ego of Madden or Jaime. The trial court did not reach the alter ego issue. Consequently, we remand the matter to the trial court for decision in the first instance on this issue. (See Lisa M., supra, 12 Cal.4th at p. 306.) 4. Notice of Hearing
Technically speaking the issue is whether or not Madden and Jaime are the alter egos of Alliance, not the other way around. (See Leek v. Cooper (2011) 194 Cal.App.4th 399, 409.)
Lastly we address plaintiffs' contention the motion was defective for failing to provide proper notice of the hearing. Code of Civil Procedure section 437c requires a notice of motion for summary judgment and supporting papers to be served at least 75 days "before the time appointed for hearing." (Id., subd. (a)(2).) The time is extended by five days if mailed within California. (Ibid.)
Defendants timely served the notice of motion and supporting papers by regular mail on November 17, 2015 for a hearing date scheduled 90 days later on February 15, 2016. It appears on November 24, 2015, the clerk detected the motion was scheduled on a court holiday and advanced the hearing one week to February 8, 2015. Defendants served notice of the new hearing date by regular mail and electronically on November 30, 2015, which was only 70 days before the February 8, 2015. Therefore, plaintiffs' reason, the notice was defective.
Plaintiffs are incorrect. They received notice of the summary judgment hearing and supporting papers by mail on or shortly after November 17, 2015. Had the hearing date of February 8, 2015 been noticed at that time, plaintiffs would have had 83 days notice, which was more than sufficient under the statute. The fact plaintiffs did not learn of the new hearing date until later does not mean the notice plaintiffs had already received was defective. Moreover, when the new hearing date was noticed, plaintiffs had in their possession all of defendants' supporting papers. The second notice necessitated by the clerk's change of date for the motion did not constitute a newly filed motion. Under these circumstances, we see no error.
Further, plaintiffs do not contend they were unable to adequately oppose the motion due to the advanced hearing date. Nor did they ever seek additional time to conduct discovery. (See Code Civ. Proc., § 437c, subd. (h) [party may apply to continue motion to obtain necessary discovery].) Indeed they filed opposition that the court considered. Therefore, even if there was error, plaintiffs have not demonstrated prejudice. (See Cal. Const., art. VI, § 13 [judgment may not be reversed on appeal unless error caused miscarriage of justice]; see also Code Civ. Proc., § 475 [no judgment shall be reversed unless error is prejudicial, appealing party suffered substantial injury, and different result would have been probable].)
DISPOSITION
The judgment is reversed. The case is remanded to the trial court with directions to vacate its earlier order and to enter a new order denying summary adjudication in favor of defendants on the vicarious liability related causes of action (first cause of action for assault, second cause of action for battery, and third cause of action for negligence) and granting summary adjudication in favor of defendants on the fourth cause of action for negligence and the fifth cause of action for negligent infliction of emotional distress. On remand, the trial court should decide in the first instance whether Madden and/or Jaime is the alter ego of Alliance. Each party is to bear its own costs on appeal.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.