Opinion
F087594
12-23-2024
LUIS COLON, Plaintiff and Appellant, v. ROSS STORES, INC. et al., Defendants and Respondents.
Gerald Peters, for Plaintiff and Appellant. Law Offices of Brunn & Flynn, Gerald E. Brunn, Drexwell M. Jones, for Defendants and Respondents Ross Stores, Inc. and Ross Stores, Inc., doing business as DD's Discounts. Mayall Hurley, Mark Berry, for Defendant and Respondent Kevin Ray Zanders.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. CV-21-003250, Sonny S. Sandhu, Judge.
Gerald Peters, for Plaintiff and Appellant.
Law Offices of Brunn & Flynn, Gerald E. Brunn, Drexwell M. Jones, for Defendants and Respondents Ross Stores, Inc. and Ross Stores, Inc., doing business as DD's Discounts.
Mayall Hurley, Mark Berry, for Defendant and Respondent Kevin Ray Zanders.
OPINION
SMITH, J.
Luis Colon sued Kevin Ray Zanders, Ross Stores, Inc., and Ross Stores, Inc., doing business as DD's Discounts, alleging that Zanders, a loss prevention officer or "store protection specialist" at a DD's Discounts store in Turlock, had assaulted him when he was shopping at the store. Colon asserted a negligence claim against Ross Stores, Inc. and Ross Stores Inc. doing business as DD's Discounts on a respondeat superior theory. The trial court ultimately granted summary adjudication on this claim, in favor of Ross Stores, Inc. and Ross Stores Inc. doing business as DD's Discounts, finding that there was no triable issue of material fact as to whether Zanders had acted in the scope of his employment and that respondeat superior did not apply as a matter of law. Colon appealed. We reverse the judgment and remand the matter for further proceedings consistent with this opinion.
PROCEDURAL HISTORY
Luis Colon filed a complaint against Ross Stores, Inc. and Ross Stores, Inc. doing business as DD's Discounts (collectively, Ross Stores) and Kevin Ray Zanders. As to Zanders, Colon alleged causes of actions of assault; battery; intentional infliction of emotional distress; negligence; and negligent hiring, supervision, and retention of unfit employee. As to Ross Stores, Colon alleged two causes action: (1) negligence; and (2) negligent hiring, supervision, and retention of unfit employee.
Ross Stores subsequently moved for summary judgment/summary adjudication as to the two claims asserted against it. Ross Stores' motion was supported by declarations from Drexwell M. Jones (counsel for Ross Stores) and Sarkeis Tomeh ("Senior Area Loss Prevention Manager" for Ross Stores, for the area covering Turlock), as well as various exhibits, including excerpts from Colon's deposition. Colon filed an opposition to Ross Stores' motion for summary judgment/summary adjudication. Colon's opposition was supported by his counsel's declaration and two exhibits, namely an excerpt from Colon's deposition and an advertisement for a store protection specialist at Ross Stores. The evidence adduced by both parties was undisputed.
After hearing oral argument, the trial court issued an order granting summary adjudication on both causes of action involving Ross Stores. As the trial court granted summary adjudication on all causes of action directed at Ross Stores, the court entered judgment in favor of Ross Stores. This appeal followed. On appeal, Colon challenges only the trial court's grant of summary adjudication on his negligence cause of action against Ross Stores. Colon does not challenge the trial court's grant of summary adjudication on his negligent hiring, supervision, and retention of unfit employee claims against Ross Stores.
FACTUAL BACKGROUND
Ross Stores' motion for summary judgment/summary adjudication was not supported by any declaration or deposition testimony from Zanders. Rather, the factual evidence presented regarding the assaultive incident underlying this matter was drawn from Colon's deposition alone. Additional evidence was presented by the parties regarding Zanders's employment history with Ross Stores and the scope of the "store protection specialist" position at Ross Stores.
We start with Zanders's employment history at Ross Stores. The declaration of Sarkeis Tomeh ("Senior Area Loss Prevention Manager" for Ross Stores) in support of Ross Stores' motion for summary judgment/summary adjudication, states: "[Zanders], an African American man, was hired as a Store Protection Specialist [by Ross Stores] on October 11, 2018." A pre-hiring background check did not reveal any criminal history and Zanders completed mandatory training activities. Specifically, on October 15, 2018, he completed" 'Store Protection Specialist Training.'" Ross Stores has a Store Protection Specialist Training Guide. The version of this guide that was current on the date of the incident underlying this case admonished store protection specialists not to confront, follow around, follow out of the store, block from leaving, stop or otherwise detain or touch, any customer suspected of shoplifting. The training guide also instructed store protection specialists not to take from customers, merchandise that was suspected to be stolen.
Tomeh's declaration further states: "[Zanders's] personnel file reflects three Corrective Action Reports. On April 12, 2019, he was given a warning for his attendance as he did not call and did not show up for work on April 6, 2019 and April 11, 2019. On November 27, 2019, [Zanders] was admonished for grabbing a bag from a suspected shoplifter. The 'agreed to' corrective action was for [Zanders] to maintain a safe and secure environment at all times in the future. Finally, on August 4, 2020, [Zanders] was given a corrective action report for being rude (by being non-responsive) to his fellow associates and managers, as well as raising his voice and not allowing his managers to complete their explanations." Finally, Tomeh's declaration states that Zanders was terminated on April 6, 2021, following the incident underlying this case.
As for the scope of a "store protection specialist" position at Ross Stores, the advertisement for a Ross Stores store protection specialist adduced by Colon states: "This position provides a visible presence at the Store entrances/exits, mitigating theft and fraud and maintaining a safe and secure environment for Associates and Customers." The advertisement advises that store protection specialists "[walk the] sales floor to identify and address potential theft indicators" and "have a mentality to protect the Ross treasure."
The advertisement identifies the "essential functions" of a store protection specialist as, inter alia, "maintaining a safe and secure environment," "mitigating theft; fraud," and "minimizing operational shortage." (Some capitalization omitted.) With respect to the "maintaining a safe and secure environment" function, the advertisement states: "[a store protection specialist] [p]rovides visible 'command' presence, including prominent greetings with eye contact, at Store entrances/exits and on sales floor in a Company issued vest/required black attire, monitoring for potential safety issues." With respect to the "mitigating theft; fraud" function, the advertisement states: "[a store protection specialist] [m]onitors entrances/exits as well as sales floor for potential theft by identifying suspicious behavior" and "[g]athers theft indicators and uses internal or external intelligence to impact shortage trends." Regarding the "minimizing operational shortage" function, the advertisement states: "[a store protection specialist]" "[i]ncreases Store awareness on effective processes to minimize operational shortage" and "[o]bserves and validates proper checkout procedures for Customers and Associates."
With the forgoing context in mind, we turn to the incident underlying this case as described largely in the excerpt from Colon's deposition transcript that was attached, along with other exhibits, to Ross Stores' motion for summary judgment/summary adjudication. The incident in question occurred on March 20, 2021, when Colon was shopping at a DD's Discounts store in Turlock, where Zanders, a store protection specialist, was on duty.
Colon testified at deposition that when he got in line to checkout at the store, Zanders was nearby, standing at his post "by the door" (Zanders was dressed in a Ross Stores uniform). Colon stated: "And I'm just waiting, waiting for the other people to move ahead and just kind of looking around the store, just, you know, like any normal person would do. And the security guard was, I guess, standing at his post and, you know, he was just, you know, staring at me. He was staring at me and, you know, I just kind of really, you know, didn't take any notice or any offense to it or anything, but I just noticed him just continuing, like you're staring at me now. Just staring with not blinking and just - and then crossing his arms." In response, Colon, as he stood in line, "crossed [his own] arms." Colon also called out to Zanders: "So, you know, I said, you know, 'Why do you keep looking at me? What's going on?'" Colon said he asked Zanders," '[w]hat's going on,'" because Zanders's actions "seemed aggressive." Colon emphasized: "I mean somebody doesn't stare you down for any other reason, you know." Zanders just "kept staring," so Colon "turned away" and "tried to avoid" the tension. Colon observed: "I kind of thought I knew where it was going and I didn't want any trouble."
After Colon paid for his purchases and walked towards the door, things escalated as Zanders "walked up to [Colon]." Colon testified: "And I was walking to the door and the security guard walked up to me before I could enter out the door and said some - you know, 'What's your problem?' you know. 'What do you' - 'What do you got to say now?'" Zanders said," 'You're bumping your gums.'" Colon noted, "A lot of things were said." Colon added Zanders was saying," 'Get out of the store. Get out of the store.'" Colon was in the process of leaving the store but was "trying to figure out what his reason was for confronting me." Colon was asked whether he was getting upset; Colon responded: "Would you get upset if somebody was in your face?" Colon confirmed he was upset and "some words were exchanged." Colon was telling Zanders," 'What's your problem. You know, back off.' "
At one point, Colon called Zanders "a fucking [n-word]." Colon testified: "[T]he reason why I said that to him is to get him away from me. And at that point he did swing on me and hit me." Colon responded by taking out his phone and filming the encounter. Zanders then "tried to knock the phone out of [Colon's] hand and swung on [him]." Colon described the situation: "And then somehow, you know, I'm trying to back away from him and we end up in the middle of the store and he's just swinging, you know, swinging at me and I'm trying to, you know, not get hit." Colon was asked whether he swung at Zanders too. Colon replied: "I don't remember, but I'm trying to - you know, if somebody is attacking you, obviously you've got to protect yourself. I have the right for that, you know. So I don't remember. It happened so fast, but I do remember, you know, just things were happening." Zanders was "aiming for [Colon's] head," and Colon sustained "cuts on the back of [his] head."
Colon described what happened next: "I'm trying to get away from this guy. And I hear the employees yelling, 'Kevin. Kevin. Kevin. Stop, Kevin. Stop, Kevin.' And then .. I go outside the door. The employees throw my bags out. At this time I pick up my phone and start walking out the door." Colon added: "I turn around to pick my things up and I notice him at the door trying to get out. And a customer was - had his hand blocked to try to keep him from stepping out the door." Colon said he "walked off and called the police." Colon got in his car and waited for the police to arrive; the dispatcher had told him to wait in place.
Colon further testified: "What happened next was he after a few minutes ran out the store. And I don't think he had his uniform on anymore. I don't know, you know, what that was all about, if he changed or what. And just ran out the store and started cussing at me and, you know, saying, 'What's up now?'" Another customer was trying to hold Zanders back as this was happening. Colon was out of his car at some point; he grabbed his steering wheel lock and held it in his hand. Zanders was calling Colon "a pussy." Colon told Zanders to leave him alone and return to his job, but Zanders said," 'Fuck that job. I got fired so, you know, I'm going to fucking get you.'" When Colon was asked whether he swung at Zanders with his steering wheel lock, Colon answered: "I know that I had it in my hand, yes. And it happened so fast, I don't even remember, you know, everything that took place.'" Colon took Zanders to the ground.
Both Colon and Zanders were injured. Colon had a fractured shoulder and a torn ligament in his arm, and his neck and spine were "pretty messed up from falling on the ground." Colon did not know how the fight ended but he finally got back in his car and drove away.
Colon testified at deposition that he did not know Zanders prior to running across him at the Ross store that day. It was undisputed that Colon did not know Zanders prior to the March 20, 2021 incident at the Ross store in Turlock. It was also undisputed that prior to the March 20, 2021 incident at the Ross store, there was no animus or dispute between Colon and Zanders.
DISCUSSION
I. The Trial Court Erred in Granting Summary Adjudication on the Negligence Cause of Action on Grounds There Were No Triable Issues of Material Fact As To Whether Zanders Was Acting Within the Scope of His Employment, When He Committed His Tortious Acts
Here, Colon argues the trial court erred in finding that Ross Stores was entitled to summary adjudication on the negligence cause of action, on grounds there were no triable issues of material fact as to whether Zanders was acting within the scope of his employment, when he committed his tortious acts against Colon. More specifically, Colon contends:
"This is a simple appeal. The sole issue is whether Kevin Zanders, an employee of defendant/respondent Ross Stores Inc. and Ross Stores, Inc. [doing business as] DD's Discounts (collectively referred to as 'Ross Stores'), was acting within the scope of his employment when he assaulted and battered Luis Colon, a customer of Ross Stores.
"Zanders was employed by Ross Stores as a store protection specialist at its Turlock store, meaning his job was to prevent shoplifting and theft from its store. Zanders was working as Ross Stores' employee when he assaulted Colon, a store customer.
"The undisputed evidence is that Colon and Zanders had never previously met and did not know each other prior to Zanders'[s] assault on Colon. There was no preexisting animus between them. Ross Stores does not contend there was.
"The sole cause of Zanders'[s] assault was events which occurred within the confines of the Ross Store - between customer and employee. [¶] ••• [¶]
"Ross Stores does not distinguish between preexisting animus which originates outside the work environment and animus resulting from an interaction at work. Its analysis is wrong and contrary to settled California law.
"Ross Stores' Motion for Summary Judgment is based entirely on snippets from Colon's [deposition] testimony and Zanders'[s] employment record. The Motion does not include any evidence from Zanders, such as his deposition testimony. There is no [direct] evidence from any source as to why Zanders assaulted and battered Colon inside the store, and later, in the store's parking lot.... Absent Zanders'[s] testimony, Ross Stores cannot demonstrate Colon does not have any evidence and is unable to reasonably obtain any evidence that Zanders was motivated by a work-related dispute.
"The limited evidence presented by Ross Stores begins with Colon standing in the 'check-out' line, waiting to pay for his purchases, continues as Zanders attacked Colon inside the store, and ends in the Ross Stores' parking lot when Zanders followed Colon to his car and continued his attack.
"The only available explanation for Zanders'[s] animosity towards Colon was solely the result of their interaction as employee and customer in the store. There is no contrary evidence."
Colon essentially argues that the evidence adduced by Ross Stores yields an inference that Zanders, on the basis of his duty to monitor safety, theft, and operational shortage concerns (including in relation to checkout procedures) at the store, had a beef with Colon because of Colon's potentially suspicious or untoward behavior in the store and the situation spiraled out of control. Colon suggests that because there was no evidence the two men knew each other before their paths crossed at the store, there was no basis to infer that Colon attracted Zanders's ire for any reason other than a work-related one. Colon further posits that the evidence readily supplies an inference that the altercation between the two men was an outgrowth of Zanders's employment. Colon argues the trial court erred in concluding there was no triable issue of material fact as to whether Zanders was acting within the scope of his employment when he confronted Colon and a violent altercation ensued.
Ross Stores, for its part, contends that the trial court properly granted summary adjudication on the negligence cause of action directed at Ross Stores, on grounds there was no triable issue of material fact as to whether Zanders was acting within the scope of his employment in loss prevention at Ross Stores, when he initially stared down and later confronted Colon inside the store. Specifically, Ross Stores argues:
"In the present case, it is critical to note that the undisputed facts, based on the complaint, plaintiff's deposition testimony, and Mr. Zanders'[s] job duties, made it clear Mr. Zanders'[s] confrontation with Mr. Colon had nothing to do with his loss prevention duties. [Citation.] Mr. Colon noticed Mr. Zanders while standing in line waiting to pay for his items and Mr. Zanders approached Mr. Colon after he had paid for items. [Citation.] At no time was the confrontation about allegations Mr. Colon was stealing or shoplifting, it was about personal disrespect ('bumping his gums') perceived by Mr. Zanders. Mr. Zanders only 'swung on' Mr. Colon immediately after Mr. Colon called him a 'fucking [n-word].' [Citation.] Ross Stores is not vicariously liable ... because there is no nexus between Mr. Zanders'[s] tort and Mr. Zanders'[s] employment." (Underlining in original.)
As discussed below, here even if the limited facts before us can be characterized as undisputed, the inferences to be drawn from those facts cannot. The parties each posit compelling but competing inferences based on the same set of facts. The point of divergence between the inferences posited by the parties is Zanders's motivation when he mad-dogged Colon, confronted him, and told him to get out of the store-the dispute escalated into physical violence from there. There is no direct evidence of Zanders's motivation or state of mind, hence the evidence is not conclusive on this point. Nonetheless, the evidence supports both the inferences posited by the parties, resulting in a factual dispute on the issue.
As we explain below, to the extent Zanders's dispute with Colon arose from Zanders's monitoring of Colon as part of his job duties-something Zanders had done once before when he tried to grab a bag from a customer he suspected of shoplifting- then Zanders's actions were within the scope of his employment.
We conclude the trial court erred in granting summary adjudication on the negligence cause of action against Ross Stores on grounds there was no triable issue of material fact as to whether Zanders was acting within the scope of his employment when he engaged in the altercation with Colon. On the instant record, the trial court could not properly determine, as a matter of law, that Ross Stores was not liable on a respondeat superior theory. The negligence claim against Ross Stores must consequently be remanded to the trial court for further proceedings.
A. Summary Judgment: Standard of Review
Any party may move for summary judgment in an action if it is contended that the action has no merit. (Code Civ. Proc., § 437c, subd. (a).)
"Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) This court reviews de novo the trial court's decision to grant summary judgment and we are not bound by the trial court's stated reasons or rationales. [Citation.] [¶] In reviewing a motion for summary judgment, we accept as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001 (Hersant).)" 'We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'" (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249-1250.)
"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) 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... [A] plaintiff [moving for summary judgment] bears the burden of persuasion that 'each element of the 'cause of action' in question has been 'proved,' and hence that 'there is no defense' thereto. (Code Civ. Proc., § 437c, subd. (o)(1).) 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. (Id., § 437c, subd. (o)(2).)" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fns. omitted.)
"[S]ummary judgment law in this state [no] longer require[s] a defendant moving for summary judgment to conclusively negate an element of the plaintiffs cause of action.... All that the defendant need do is to 'show[] that one or more elements of the cause of action . cannot be established' by the plaintiff. (Code Civ. Proc., § 437c, subd. (o)(2).)" (Aguilar v. Atlantic Richfield Co., supra, at p. 853, fn. omitted.)
B. Respondeat Superior: Applicable Legal Framework
"' "Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment."' " (Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 165, fn. 6.) Respondeat superior imposes vicarious (or derivative) liability upon the employer-i.e., it imputes the employee's fault to the employer and thus makes the employer responsible in damages just as if the employer personally committed the tortious act." (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:611.) "Respondeat superior is therefore a form of strict liability: The employer is responsible for the employee's wrongful acts (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct." (Ibid.)
Civil Code section 2338 essentially codifies the respondeat superior doctrine. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296, fn. 2 (Lisa M.).) Civil Code section 2338 "is not limited to employer and employee but speaks more broadly of agent and principal; it makes the principal liable for negligent and 'wrongful' acts committed by the agent 'in and as part of the transaction of such [agency] business.'" (Ibid.)
Respondeat superior is based in part on a "deep pockets" rationale, but is also grounded upon" 'a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.'" (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:612.) "The doctrine is a departure from the general tort principle that liability is based on fault. [Citation.] It is' "a rule of policy, a deliberate allocation of risk." '" (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-209 (Mary M.); accord Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960 (Hinman).)
When a theory of respondeat superior is alleged, the plaintiff "bears the burden of proving the tortious act was committed within the course and scope of employment." (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:685; 3 Witkin, Summary of Cal. Law (11th ed. 2021) Agency and Employment, § 175 ["Under the doctrine of respondeat superior, the innocent principal or employer is liable for the torts of the agent or employee, committed while acting within the course and scope of employment. It is immaterial that the employee acts in excess of authority or contrary to instructions."].) Whether an employee's wrongful acts were committed during the scope of employment is judged by" 'a two-pronged disjunctive test.'" (See Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015 (Crouch).)" 'The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee's duties, or (2) it is reasonably foreseeable in light of the employer's business.'" (Ibid.) "If an employee's actions fall within the range of actions covered by either part of this two-prong test, the employer will be liable for the wrong, even though the employee has acted maliciously and intentionally." (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.)
As for the first prong of the test (required by employer or incidental to the employee's duties), this is sometimes referred to as the "nexus" test: there must be some "nexus" between the employee's tort and the employment to ensure that liability is properly placed upon the employer. (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 582; Crouch, supra, 39 Cal.App.5th at p. 1015 [" 'before [vicarious] liability will be imposed on the employer there must be a connection between the employee's intentional tort and the employee's work' "].) "The employee need not have intended to further the employer's interest for the employer to be liable if there is a 'causal nexus' between the intentional tort and the employee's work." (Crouch at p. 1015; see Mary M., supra, 54 Cal.3d at p. 209 [scope of employment may encompass tortious conduct that disregards the employer's express orders: 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].) Stated otherwise, the tort must be "engendered by or arise from"-or be an" 'outgrowth'" of-the employee's work. (Lisa M., supra, 12 Cal.4th at p. 298; Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, 1441 (Sulimen).)
" 'The nexus required for respondeat superior liability-that the tort be engendered by or arise from the work-is to be distinguished from "but for" causation. That the employment brought tortfeasor and victim together in time and place is not enough.... [T]he incident leading to injury must be an "outgrowth" of the employment [citation]; the risk of tortious injury must be" 'inherent in the working environment'" [citation] or" 'typical of or broadly incidental to the enterprise [the employer] has undertaken.'" '" (Sulimen, 78 Cal.App.4th at p. 1441, italics omitted.) However "[i]f the injury producing event (between employee and victim) is not an 'outgrowth' of the employment and has no connection with any aspect of the employment, there is not a sufficient link to the employment to impose vicarious liability." (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:725; Farmer's Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1006 (Farmer's) [" '[i]f an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior' "]; Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 482 (Harnsmut) ["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"].)
Next, as to the "foreseeability" test, this test is met if, in the context of the particular enterprise, the employee's conduct is not so" 'unusual or startling'" that it would seem" 'unfair'" to factor the liability into the employer's cost of doing business. (Harnsmut, supra, 106 Cal.App.4th at p. 484; see Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1383 [arson committed by Fire Marshall while performing inspection deemed so "startling and unusual" as to be outside risks that should be fairly imposed on employer]; see also Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3d 831, 840 [county not liable where law enforcement officer who spotted valuables during premises search returned off duty and in disguise to commit armed robbery].)
With regard to the foreseeability test, "[t]he threshold inquiry is whether the wrongdoing may fairly be said to be characteristic of the employment activities." (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:704.) "Respondeat superior liability should apply only to the types of injuries that are' "as a practical matter sure to occur in the conduct of the employer's enterprise." '" (Lisa M., supra, 12 Cal.4th at p. 299.) "The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought." (Ibid.; see Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960 ["California cases have long recognized that the employer's responsibility for the torts of his employee extends beyond his actual or possible control of the servant to injuries which are 'risks of the enterprise.' "].)
However, "that an employee might inflict injury for purely personal reasons is not reasonably foreseeable for purposes of imputing liability to the employer." (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:725; Farmer's, supra, 11 Cal.4th at p. 1005 [where employee acts on basis of personal grudge, "the losses do not foreseeably result from the conduct of the employer's enterprise and so are not fairly attributable to the employer as a cost of doing business"].)
Courts have identified three reasons for applying the modern theory of respondeat superior: (a) to prevent the recurrence of the tortious conduct, (b) to give greater assurance of compensation for the victim, and (c) to ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. (Perez v. Van Groningen &Sons (1896) 41 Cal.3d 962, 967; Mary M., supra, 54 Cal.3d at p. 209; 3 Witkin, Summary of Cal. Law (11th ed. 2021) Agency and Employment, § 176.)
"Generally, the determination of whether an employee has acted within the scope of employment is a question of fact. But it becomes a question of law for our independent consideration when '" 'the facts are undisputed and no conflicting inferences are possible.'" '" (Sulimen, supra, 78 Cal.App.4th at p. 1441.)
C. Background: The Trial Court's Ruling
The trial court's order granting summary judgment is brief and does not explain the court's reasoning. The order states, in pertinent part:
"On consideration of all the evidence set forth in the papers submitted, and the inferences reasonably deducible therefrom (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850), the Court confirms the tentative ruling as follows:
"Defendants Ross Stores, Inc., and Ross Stores, Inc., [doing business as] DD's Discounts Motion for Summary Judgment or, Alternatively, for Summary Adjudication [CCP 437C] - GRANTED.
"After full consideration of the evidence, and the written submissions by the parties, the Court finds that there are no triable issues of material fact as to whether Defendant Kevin Ray Zanders was acting within the scope of his employment during his altercation with Plaintiff. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
"Accordingly, Defendant's motion for summary adjudication as to the lack of Defendant's liability to Plaintiff as a matter of law because Kevin Ray Zanders was not acting within the scope of his employment [when] he engaged in tortious conduct towards Plaintiff, is hereby granted. (Flores v. AutoZone W., Inc. (2008) 161 Cal.App.4th 373, Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.)"
D. Analysis
The present case is best analyzed with reference to Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373 (Flores), which we will summarize in some detail. In Flores, the defendant (AutoZone) successfully asserted in a summary judgment motion in the trial court that it could not be held liable for the damages caused by its employee's (Gomez) physical assault of a customer (Flores) at an AutoZone store, after the customer had spoken to Gomez in an arguably insulting manner. (Flores, supra, at p. 376.) Gomez was a parts sales manager at AutoZone and one of his job duties was to answer customer's questions and assist them with finding products. (Id. at p. 377.) "The incident at issue .. occurred .. .when Flores, who was then 56 years old, went to the AutoZone store where Gomez was employed, to purchase motor oil. Although Flores had seen Gomez at the store during prior visits, he did not know Gomez and had never spoken to him. Because Flores needed assistance, he made a noise to get the attention of Gomez, who happened to be standing nearby. Flores then asked Gomez the price for a case of motor oil. Gomez responded by admonishing him, 'Don't whistle, you say "excuse me." He then inquired if Flores was too stupid to read the prices displayed on the shelf. Flores told Gomez that he shouldn't have come into work if he didn't want to work. Gomez, who was holding a metal pipe in his hand, responded with words to the effect of 'no one will tell me what to do,' and struck Flores on the head with the pipe." (Id. at p. 377-378.)
Flores sued both AutoZone and Gomez for injuries sustained in the incident; he asserted a respondeat superior theory against AutoZone and alleged Gomez was acting in the course and scope of his employment at the time of the injury. (Flores, supra, 161 Cal.App.4th at p. 377.) In its summary judgment motion, AutoZone argued Gomez's conduct of" 'attacking] .. an older and smaller gentleman [with a steel pipe] can only be described as perverse and beyond any human decency' and was outside the course and scope of his employment as a matter of law." (Id. at p. 378.) Flores opposed the motion, "arguing that because interacting with customers was a part of Gomez's job duties, a jury could reasonably conclude [Gomez's] act of physically attacking Flores, after Flores inquired about the case price of motor oil, fell within the course and scope of his employment." (Ibid.) The trial court granted summary judgment in favor of AutoZone, determining AutoZone had established that Gomez's" 'conduct was unforeseeable to place Gomez within the course and scope of employment with [AutoZone] at the time of his intentional, independent acts.'" (Ibid.)
On appeal, the Flores court, took a different view, reasoning: "The question . is whether an employee's physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment. Our Supreme Court has suggested it may well be: 'Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to "physical act[s] of aggression." (See Carr v. Wm. C. Crowell Co. [(1946)] 28 Cal.2d [652,] 656]; Hodges v. Workers' Comp. Appeals Bd. [(1978)] 82 Cal.App.3d [894,] 902].)" '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.]' (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1009.)" (Flores, supra, 161 Cal.App.4th at p. 380.)
The Flores court continued: "Although the courts in both Carr and Parkhouse Tire Service were addressing the risk of violence between coworkers, rather than between an employee and customer, we cannot draw a meaningful distinction between the two scenarios. The workplace stresses and strains which might cause an employee to erupt in anger are not dependent upon whether the person who happens to be standing in the line of fire is a coworker or a retail customer. [Citations.] In either scenario .. 'flare-ups [and] frustrations' are commonplace for employees during the course of their work." (Flores, supra, 161 Cal.App.4th at p. 381.) Flores observed: "Nonetheless, AutoZone argues that the altercation between Flores and Gomez in this case could not be viewed as an 'outgrowth[] of employment' [citation] because it was not attributable to 'work-related events or conditions' [citation]. According to AutoZone, it was not until after Gomez 'had completed the appointed task of directing the plaintiff to the location where the price for motor oil was displayed,' that 'a spark of malice . was suddenly and unexpectedly ignited after [Gomez] heard he should not have come to work.' That spark was 'purely personal,' and purportedly 'had nothing to do with the price of oil, or retrieving a case off the shelf for [Flores.]'" (Id. at p. 381.)
Flores noted: "We are not persuaded. In our view, the anger generated during the interaction between Flores and Gomez cannot be so tidily compartmentalized-at least not as a matter of law. While it may be true that Gomez did not develop his malicious 'spark' until the moment Flores made his last comment, a jury could certainly infer from his prior comments that his anger had been 'sparked' at an earlier point. 'Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when "the facts are undisputed and no conflicting inferences are possible." '" [Citation.] Here, even if the 'facts' could be characterized as undisputed, the possible inferences to be drawn from those facts cannot." (Flores, supra, 161 Cal.App.4th at p. 381.) Flores concluded: "In this case ... a jury could reasonably conclude Flores's 'personal' remark to Gomez-which AutoZone contends was the immediate cause of his violent act-was merely the last phase of the quarrel that began when Flores first made the 'noise' intended to get Gomez's attention and assistance with his intended purchase of motor oil." (Id. at p. 382.)
Flores found Stansell v. Safeway Stores, Inc. (1941) 44 Cal.App.2d 24 (Stansell) [store manager assaulted customer in dispute about grocery order], instructive. Flores stated: "In [ Stansell ], the store manager had engaged in a dispute with a young customer regarding the existence of a 'county relief order' to pay for the customer's groceries. Although the manager had become 'angry' during a telephone call with the customer's mother regarding the existence of the order, he was not violent. It was only after he escorted the customer to the door, and they exchanged insults (he called her mother a 'damned bitch' and she responded that if her mother was a bitch, he was a 'bastard'), that he 'started for' her, she ran, and he caught and beat her in the parking lot. [Citation.] The court there had no problem construing the altercation as occurring during the course and scope of the manager's employment, even though he had not actually become violent until the customer referred to him in a personally insulting way. As the court explained: 'He first lost his temper while he was handling the matter of the order, which was clearly in the line of his duty. He became more angry in answering a question asked by the girl with respect to the groceries, and in replying to that question accused her mother of lying and called the mother a vile name. The girl's answering epithet increased his anger but did not change the nature of the quarrel which arose in, from and as a part of his performance of the duty for which he was employed. He was on duty at all times, the girl was dealing with him for this reason, the matter was still being discussed and had not been completed when the final phase started, the entire controversy was closely connected with his work, and the matter was continuous and of brief duration .. The matter being one which was a question of fact for the trial court it cannot be said that the court's finding that the acts were committed in the course and scope of his employment is not sustained by the evidence.'" (Flores, supra, 161 Cal.App.4th at pp. 381-382.)
Flores emphasized: "To be clear, we are not now concluding AutoZone is necessarily liable, on a theory of respondeat superior, for Gomez'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." (Flores, supra, 161 Cal.App.4th at pp. 383-384.)
The posture of the instant appeal mirrors the posture of Flores. The question is whether the trial court could properly determine, as a matter of law, that Ross Stores was not liable for Zanders's tort on a respondeat superior theory. We conclude that, just as in Flores, "[h]ere, even if the 'facts' could be characterized as undisputed, the possible inferences to be drawn from those facts cannot." (Flores, supra, 161 Cal.App.4th at p. 381.) As mentioned above, Ross Stores contends the evidence supports an inference that Zanders acted out of personal animosity that was sparked when Colon uttered a racial epithet, thereby precluding a connection between the tortious acts and the employment. Colon, for his part, contends the evidence supports a contrary inference, that is, that Zanders swung at Colon as part of a chain of events that started when Zanders mad-dogged Colon as the latter waited to checkout and Zanders monitored the store from his post. Colon posits that since the two men had no prior association, the dispute necessarily arose from Zanders's monitoring activities on behalf of the store (that is, Zanders was angry at Colon because of the latter's behavior in the store), and under Flores, Zanders's tortious acts were engendered by his employment, thereby triggering the application of respondeat superior.
Colon's contentions find support in Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 (Rodgers). In Rodgers, off-duty employees, who had been drinking beer at the job site, assaulted workers for another contractor after requesting and being refused a ride on a bulldozer driven by one of the victims. (Rodgers, supra, 50 Cal.App.3d at pp. 614-616.) Rodgers applied the analysis developed in Carr, supra, 28 Cal.2d at page 657, in which "the Supreme Court explained there could be no personal malice where the assailant and his victim were strangers." (Rodgers at p. 621.) Rodgers found substantial evidence the attack at issue there-in which the victims were seriously injured and permanently disabled-was within the scope of the assailants' employment. The assailants and victims, the court noted, were "complete strangers" until their work brought them together; thus the dispute could not have derived from "personal malice unrelated to the employment." (Rodgers at p. 621.) Rather, a work-related dispute was the "proximate cause" of the attack. (Ibid.)
In sum, in this case, as in Flores, the possible inferences to be drawn from the "undisputed" facts are themselves subject to dispute. In other words, there is plainly a factual dispute in regard to Zanders's motivation in tangling with Colon in the first instance and the causal nexus between his act and his employment. As a consequence, the trial court erred in denying Colon an opportunity to present his case on the negligence cause of action against Ross Stores at trial. (See Harnsmut, supra, 106 Cal.App.4th at pp. 482-483 ["In the final analysis, we must return to our Supreme Court's admonition that the determination of whether an employee has acted within the scope of employment is ordinarily a question of fact for the jury. [Citations.] Although the question becomes one of law where the evidence is undisputed and no conflicting inferences are possible [citation], this is not such a case."]; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843 [in reviewing a grant of summary judgment, we must" 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citations], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party."].)
Finally, we note Colon did not challenge on appeal, the trial court's grant of summary adjudication in favor of Ross Stores as to Colon's cause of action for negligent hiring, supervision, and retention of unfit employee. Accordingly, the trial court's grant of summary adjudication in favor of Ross Stores as to Colon's cause of action for negligent hiring, supervision, and retention of unfit employee is affirmed.
DISPOSITION
The judgment is reversed. The case is remanded to the trial court with directions to vacate its earlier order and enter an order summarily adjudicating, in favor of defendants Ross Stores, Inc., and Ross Stores, Inc., doing business as DD's Discounts, only Colon's fifth cause of action (alleging negligent hiring, supervision, and retention of unfit employee). Colon is to recover his costs on appeal.
WE CONCUR: DETJEN, Acting P. J., SNAUFFER, J.