Opinion
G054660
09-27-2018
JANE DOE, Plaintiff and Appellant, v. WALMART STORES, INC., Defendant and Respondent.
Schwartz & Asiedu and Kwasi A. Asiedu; Law Offices of Edi M. O. Faal and Edi M. O. Faal, for Plaintiff and Appellant. Pettit Kohn Ingrassia Lutz & Dolin and Andrew N. Kohn, Jennifer N. Lutz, and Christina G. Bernstein, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2015-00799667) OPINION Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed. Schwartz & Asiedu and Kwasi A. Asiedu; Law Offices of Edi M. O. Faal and Edi M. O. Faal, for Plaintiff and Appellant. Pettit Kohn Ingrassia Lutz & Dolin and Andrew N. Kohn, Jennifer N. Lutz, and Christina G. Bernstein, for Defendant and Respondent.
Plaintiff Jane Doe (Doe) appeals from a final judgment following the trial court's order granting summary judgment to defendant Walmart Stores, Inc. (Walmart). Walmart employee Doe alleged Walmart negligently hired, retained, and supervised a fellow Walmart employee who sexually assaulted her after work hours, and outside the workplace. She further alleged Walmart was negligent in not warning her of her coworker's criminal history. Walmart moved for summary judgment, arguing it owed no duty to discover or warn Doe of her coworker's past criminal conduct, and that any failure to discover and warn Doe of his criminal history did not cause the injuries she suffered when she was off work and not in the workplace. The trial court granted the motion, finding that Doe had failed to produce evidence showing a disputed material issue of fact on either duty or causation. We agree with the trial court's conclusions and affirm the judgment.
I.
FACTS AND PROCEDURAL HISTORY
The series of events leading to this lawsuit are undisputed. In July 2013 Jane Doe was employed by Walmart as a Customer Service Associate and worked the Returns desk at a Walmart retail store in the City of Orange. Olin Martin also worked for Walmart at the Orange store, and was employed as an Associate who stocked shelves and oversaw the alcohol and food aisles. Doe testified in her deposition she first met Martin at work sometime in 2010 or 2012. Doe's and Martin's shifts did not always coincide, although they did on the night of July 21, 2013; Martin normally worked nights but Doe's schedule varied. Doe occasionally saw Martin at work, but estimated she did not talk to him even once a week.
Martin's Walmart job application is dated April 18, 2011, and his consent to a background check is dated April 19, 2011.
At about 6:00 p.m. on July 21, Doe and Martin met at a nearby park during their hour-long lunch break and smoked marijuana together in his car. The park is about a three-minute drive from the Walmart store and they drove to the park separately. Earlier that day, Doe told Martin she wanted to smoke some "weed" because she was having a "crappy day." He responded: "Okay. Sure. At lunchtime."
While at the park, Martin attempted to "hit" on Doe, but she told him "it was just strictly about the weed." He asked her if she had "feelings" for him, and she told him "No." "So you're just here for my weed," he asked, to which she replied "Yes." When Martin became upset because Doe had rejected him, Doe offered to pay him for the marijuana she had used because she did not "want him to get the wrong impression of me trying to get with him or him trying to get something out of me." Martin remained silent. From the time she returned from lunch until she finished her shift, Martin did not contact her.
At the end of their shifts, both clocked out at 11:00 p.m., but Doe stayed at the store about 45 minutes to do some shopping. While she was shopping, Martin texted her six or seven times, asking her "where are you," and "aren't you off." She ignored his text messages.
When Doe left the store, Martin approached her and asked what she was doing and where she was going. She replied she had been shopping for her family and was going home. She asked Martin why he was still there, and "[d]on't you have to go home to your wife?" He did not reply.
Martin followed her as she walked to her van in the Walmart parking lot. She began putting her groceries into her van and, and when she had her back turned to him, he attacked and sexually assaulted Doe repeatedly. Doe estimated the attack lasted "over an hour." During his assaults, Martin told her he was upset she had rejected him earlier that day.
While it is not clear from the record, Doe apparently was parked behind the Walmart store because she testified at her deposition that after she was attacked she drove "all the way around to the front of Walmart."
Following Martin's attack, the severely traumatized Doe returned to the front of the store, where fellow employees found and assisted her, one of whom ultimately took her to the police station. Walmart fired Martin two days later. Martin was convicted for his crimes against Doe, and sentenced to a 35-years-to-life prison term.
In 2016, we affirmed Martin's conviction and remanded the matter for a minor sentence correction that did not affect the length of his prison commitment. (People v. Olin Johnston Martin, Jr. (June 22, 2016, G050805 [nonpub. opn.]).)
Doe thereafter sued Walmart. In her first amended complaint, Doe's first cause of action alleged Walmart was negligent in hiring, supervising, and retaining Martin because, unknown to Walmart, Martin had suffered two prior robbery convictions in Los Angeles County — one in 1982, the other in 1994. Within this first cause of action, Doe additionally alleged Walmart was negligent in failing to warn "other employees and customers" that Martin was a convicted felon. Her second cause of action is specifically captioned as a "Failure to Warn," and incorporates the relevant allegations from the first cause of action.
II.
DICUSSION
A. Legal Background
"[A]ny party to an action, whether plaintiff or defendant, 'may move' the court 'for summary judgment' in his favor. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Ibid.) "Summary judgment is appropriate only 'where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' [Citation.] A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action. [Citation.]" (Regents of University of California. v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents).)
Thus, a defendant moving for summary judgment bears the initial burden of persuasion demonstrating "there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law." (Aguilar, supra, 25 Cal.4th at p. 843.) A defendant meets this burden by "present[ing] evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established." (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879; cf. Regents, supra, 4 Cal.5th at p. 618 ["A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action"].) Once the [defendant] has met that burden, the burden shifts to the [plaintiff] to show that a triable issue of one or more material facts exists as to the cause of action." (Code of Civil Procedure, § 437c, subd. (p)(1) & (2); Aguilar, supra, 25 Cal.4th at p. 850.)
A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) To do so, however, the plaintiff may not merely rely on the allegations in the complaint. (Ibid.) Moreover, a plaintiff cannot establish a triable issue of material fact based on inferences drawn from assumptions or suppositions. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Rather, it "must present evidence including 'affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice' must or may 'be taken.'" (Aguilar, supra, 25 Cal.4th at p. 843.) Ultimately, "[t]he court must 'grant[]' the 'motion' '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.'" (Ibid., citations omitted.)
"'An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.' [Citation.] However, '[a] reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . mere speculation as to probabilities without evidence." [Citation.]'" (People v. Davis (2013) 57 Cal.4th 353, 360.)
"'On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.' [Citation.] We review the entire record, 'considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.' [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion. [Citation.]" (Regents, supra, 4 Cal.5th at p. 618.) Consequently, "we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. [Citation.]" (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 (Saelzer).) We are "not bound by the trial court's stated reasons for its ruling on the motion, as the appellate court reviews only the ruling and not its rationale." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 457.) B. The Negligent Hiring/Retention/Supervision Cause of Action
"The elements of a cause of action for negligence are (1) the existence of a legal duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of the plaintiff's injury. [Citation.] 'As a practical matter, these elements are interrelated, as the question whether an act or omission will be considered a breach of duty or a proximate cause of injury necessarily depends upon the scope of the duty imposed. . . . [Citation.]'" (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210-1211 (Federico).) Consequently, to prevail in a negligence suit requires a plaintiff "to prove duty, breach [of that duty], causation, and damages." (Regents, supra, 4 Cal.5th at p. 618.)
"'Duty, being a question of law, is particularly amenable to resolution by summary judgment.' [Citation.]" (Regents, supra, 4 Cal.5th at p. 618.) Negligence, on the other hand, normally presents a question of fact for the jury. "However, where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment granted." (Federico, supra, 59 Cal.App.4th at p. 1214.)
Generally, "one owes no duty to control the conduct of another, nor to warn those endangered by such conduct" unless "'(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.' [Citations.]" (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 (Davidson).) In other words, "'[a] person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.' [Citation.]" (Regents, supra, 4 Cal.5th at p. 619.) Therefore, "[w]here, as here, a 'complaint alleges injuries resulting from the criminal acts of third persons . . . "the common law, reluctant to impose liability for nonfeasance, generally does not impose a duty upon a defendant to control the conduct of another [citations], or to warn of such conduct [citations], unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct. [Citations.]" [Citation.]'" (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564 (Roman Catholic Bishop).)
In the employment context, "[a]n employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]" (Roman Catholic Bishop, supra, 42 Cal.App.4th at pp. 1564-1565.) "[A]s defined by California authority. . . ," this duty "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, supra, 59 Cal.App.4th at p. 1214 (italics added).)
In Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133 (Phillips), the court observed: "'An [employee] . . . may be incompetent because of his reckless or vicious disposition, and if [an employer], without exercising due care in selection, employs a vicious person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity . . . . [¶] One who employs another to act for him is not liable . . . merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand. . . . [¶] . . . "In 2006, the Restatement Third of Agency was published . . . stating: '(1) A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent's conduct if the harm was caused by the principal's negligence in selecting, training, retaining, supervising, or otherwise controlling the agent . . . .' [Citation.] 'Liability under this rule is limited by basic principles of tort law, including requirements of causation and duty.' [Citation.] Furthermore, '[l]iability under this rule also requires some nexus or causal connection between the principal's negligence in selecting or controlling an actor, the actor's employment or work, and the harm suffered by the third party.' [Citation.]" (Phillips, supra, 172 Cal.App.4th at p. 1140, italics added.)
Here the undisputed record shows Martin had a single disciplinary incident in June 2012 involving disrespectful or harassing comments made to fellow Walmart employees and customers. Doe provided no allegations or evidence regarding the nature or specifics underlying this disciplinary incident other than the deposition testimony of a co-manager of the Orange Walmart store that "Martin admitted to making inappropriate comments to customers and co-workers." This comanager knew no other details, including the nature of the comments, to whom they were made, or on how many occasions. Doe evinced Walmart's internal memorandum regarding Martin's subsequent "coaching" about this incident, but it is opaque corporate doublespeak and provides no assistance here.
Martin also had a criminal record that included two remote robbery convictions, one in 1982, the other in 1994. It is uncontested Walmart was unaware of this criminal history, and Doe did not allege or present evidence of the underlying factual details of these two robberies.
Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.)
Walmart's alleged negligence in hiring or retaining Martin as an employee is actionable only if it created an undue risk of harm to others when viewed in light of the work Martin was hired to perform. (Federico, supra, 59 Cal.App.4th at p. 1214.) "An employer is not charged with guaranteeing the safety of anyone his employee might incidentally meet while on the job against injuries inflicted independent of the performance of work-related functions. Rather, . . . liability for negligence can be imposed only when the employer knows, or should know, that the employee, because of past behavior or other factors, is unfit for the specific tasks to be performed." (Federico, supra, 59 Cal.App.4th at p. 1215, italics added.) Thus, Walmart was not a blanket guarantor of the safety of all persons, including other employees, who Martin may have incidentally met while working as an Associate performing his assigned shelf-stocking work for Walmart. Doe provides no authority suggesting otherwise.
Here, Walmart could be held liable for Martin's negligent hiring or retention only if it knew, or should have known, Martin was unfit to perform the work for which he was hired, i.e., as an Associate assigned to upkeep and stock the liquor and food aisles. Imposition of any further responsibility required Doe to demonstrate Walmart owed her an additional duty to use due care in the hiring and retention of Martin as regards to extramural, nonwork related activities involving its employees. She did not.
Furthermore, whatever assumed duty Walmart may have owed Doe, or other Walmart workers, for its hiring and retention of Martin as an employee, no evidence showed Walmart breached that duty. Assuming Walmart had discovered Martin's criminal history by performing a more comprehensive background check, Doe does not tell us what Walmart would have been obliged to do with that information. She does not allege it would have been per se negligent for Walmart to hire Martin in the first place, nor does she describe how Walmart should have somehow "supervised" Martin differently from its other employees, both while on the job and off, because of his prior criminal history. (Cf. Roman Catholic Bishop, supra, 42 Cal.App.4th at p. 1566-1567 ["Even if the church had learned of [the priest's] prior sexual affairs with adults, it is illogical to conclude the church should have anticipated [the priest] would commit sexual crimes on a minor. More important, the legal duty of inquiry [plaintiff] seeks to impose on the church as an employer would violate the employee's privacy rights."].)
Assuming Walmart owed its employees an additional duty of care, Doe also failed to establish a causal nexus between Walmart's supposed negligent hiring and retention of Martin and his subsequent sexual assault of Doe. In Phillips, supra, returning to the Restatement Third of Agency, the court stated there must be "'some nexus or causal connection between the principal's negligence in selecting or controlling an actor, the actor's employment or work, and the harm suffered by the third party.' [Citation.] . . . . 'Likewise, when the actor's tort occurs in the course of an extramural activity unrelated to the actor's employment, the tort may lack a sufficient causal relationship to the actor's employment.' [Citation.]" (Phillips, supra, 172 Cal.App.4th at pp. 1145-1146, italics added.)
As a result, in Phillips the court found "in the undisputed circumstances of this case, we doubt Defendants' alleged negligent hiring and retention of [employee] was a proximate or legal cause of [employee's] tortious conduct committed on [plaintiff] two years after Defendants terminated his employment, especially when [employee] and [plaintiff's] initial social relationship began outside of [employee's] employment duties and their romantic relationship did not begin until after his employment was terminated." (Phillips, supra, 172 Cal.App.4th at p. 1146, second italics added.)
Similarly, here Doe did not show Walmart's purported negligent hiring and retention of Martin was a proximate or legal cause of Martin's subsequent criminal conduct. Neither Doe nor Martin were at their workplace, or even on duty, at the time of the sexual assault, nor during their lunchtime meeting at the nearby park. Moreover, the motivation for Martin's assault was Doe's refusal to respond favorably to his amorous advances during their lunch in the park, and smoking marijuana at lunch that day was unquestionably outside of Doe and Martin's employment duties and responsibilities. (Cf. Phillips, supra, 172 Cal.App.4th at p. 1146.)
Just as important, "the prime concern in every case [is] foreseeability, because that factor is the chief element in determining a defendant's duty to [a] plaintiff." (Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, 389.) The "determination of foreseeability [is] to be made on a case-by-case basis." (Id. at p. 390.) If considered only in the abstract, "the quest for foreseeability is endless because [it], like light, travels indefinitely in a vacuum." (Id. at p. 391.) Thus, as to foreseeability, "the court's task in determining duty 'is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.' [Citations.]" (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772, original italics.)
Two robberies committed 31 and 19 years earlier do not foreseeably indicate Martin would someday sexually assault a fellow employee in a Walmart parking lot after both employees were clocked out and off-duty. The foreseeability of that specific type of harm is simply too speculative and the causal nexus too attenuated. Doe provides no authority to suggest otherwise.
While both Doe and Martin worked the same shift in the Walmart store on July 21, there was no evidence they had worked together at the store. The evidence instead shows their contacts before the sexual assault were incidental ones, during breaks and lunch hours, and occasional small talk on the sales floor when Doe returned merchandise from the Returns Desk to the store shelves. Moreover, without more specific facts about the underlying robbery convictions — which Doe did not allege or evince below — it is doubtful whether it was reasonably foreseeable Martin would have robbed a fellow employee, let alone sexually assaulted one.
For the same reasons, the fact Martin may have been "coached" by his employer in June 2012 for making unspecified and unknown inappropriate comments to customers and fellow employees also does not reasonably suggest that more than a year later, in July of 2013, he would sexually assault another Walmart employee in the store parking lot while both were off-duty. The trial court properly found Doe failed to meet her burden to maintain a cause of action for negligent hiring, supervision, or retention. C. The Negligent Failure to Warn Cause of Action
In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 (Tarasoff), subsequently limited by statute (Civil Code section 43.92), Tatiana Tarasoff was the specific target of threats by an eventual assailant. Our Supreme Court held that the defendant University's therapists who heard those threats had a duty to exercise due care by warning the potential victim. This duty arose from the special relation between a patient and his doctor or psychotherapist, generally recognized as supporting an affirmative duty for the benefit not only of the patient, but of other persons as well. (Tarasoff, supra, 17 Cal.3d at p. 436.)
In an often-overlooked part of that case, Tarasoff had also sued certain police defendants who briefly had detained and then released her eventual assailant. The court concluded the police officers "do not have any such special relationship to either [Tarasoff] or to [the assailant] sufficient to impose upon such defendants a duty to warn respecting [assailant's] violent intentions." (Tarasoff, supra, 17 Cal.3d at p. 444.) In fact, "no duty to warn was imposed on the police in Tarasoff where a stronger connection existed between them and [the assailant] — he had been in [police] custody and was released with knowledge of potential for violence against a specific victim." (Davidson, supra, 32 Cal.3d at p. 205, fn. 3.)
Although Tarasoff is not an employer-employee case, Doe has not identified any authority imposing a general duty upon employers to warn their employees about a coworker's criminal "propensities" or prior criminal convictions. We find instructive Duffy v. City of Oceanside (1986) 179 Cal.App.3d 666 (Duffy), a case the trial court cited in its ruling below.
Nor has Doe ever explained how such a warning would be phrased or provided given California's strict personal privacy interests and the presumptive statutory confidentiality of an employee's personnel records. (Cf. Roman Catholic Bishop, supra, 42 Cal.App.4th at pp. 1566-1567 ["[T]he legal duty of inquiry [plaintiff] seeks to impose on the church as an employer would violate the employee's privacy rights."].) Indeed, if Doe were correct, Walmart would have been faced with the dilemma of having to choose between being sued by Martin for disclosing the contents of his confidential criminal and personnel records, or being sued by Doe or another employee for failing to warn them about Martin's prior criminal history.
In Duffy, the City of Oceanside through a special incentive program hired a parolee and assigned him to the engineering department. This new employee was on parole following three years in a state mental hospital, and an additional four years in state prison, after his convictions for kidnapping, rape and sexual assault. (Duffy, supra, 179 Cal.App.3d. at p. 669.) A month after the parolee was hired, the victim, also an employee in the engineering department, reported to her supervisors that the new employee had sexually harassed her during working hours by touching her in a suggestive fashion without her permission. Despite these reports, she was never told or warned about his criminal background. (Ibid.)
Within three months, however, she and the new employee "developed a friendly work and social relationship which continued for some four and one-half years. The City knew of the development of this relationship but nonetheless failed to warn [her]" about his past history. (Duffy, supra, 179 Cal.App.3d at p. 669.)
Four years later, the parolee "placed an inter-office call to [her] regarding work-related matters. During the conversation, [he also] asked for [her] help in remedying a problem he had earlier in the morning with his car. [She] agreed and apparently left the office with the [parolee] on her lunch break. Thereafter, [he] kidnapped [her], taking her to his home where he stripped, bound and gagged her. After tying a self-tightening noose around her neck, [he] left her and went back to work, intending to return later. While he was gone, [she] strangled herself attempting to escape." (Duffy, supra, 179 Cal.App.3d at p. 669.)
Among other causes of action, the plaintiffs (the woman's children) sued the City of Oceanside for employing the parolee and for failing to warn their mother about the parolee's past history and "dangerous propensities." (Duffy, supra, 179 Cal.App.3d at p. 668.) The trial court sustained a demurrer to this cause of action, concluding the City owed plaintiffs no duty to warn. (Id. at p. 669.)
The Court of Appeal rejected plaintiffs' argument the City was obligated to warn all existing employees of the new employee's criminal history and violent propensities: "Were the substance of plaintiffs' complaint simply that the City was obliged to warn all female employees who might come in contact with [parolee] of his prior criminal conduct, we would be unpersuaded. While others might phrase this conclusion in terms of the lack of a duty to warn, we prefer to say that such a complaint, without more, would fail to state facts from which a reasonable jury could conclude the City acted negligently. The mere fact that [parolee] had been convicted of assaults on two women at least seven years earlier — for which he had served time in prison and been treated in a mental hospital — gives rise to an insufficiently strong inference that he would repeat similar criminal behavior." (Duffy, supra, 179 Cal.App.3d at p. 674.)
Nevertheless, the court went on to find that there were additional considerations present that did warrant overruling the City's demurrer. "Plaintiffs' allegation in the present case, however, is not based simply on the failure to warn all employees at the time the City hired [parolee]. They additionally allege that [victim] reported to her supervisors that she had been sexually harassed by [parolee] shortly after he was hired. . . . If known to the City, these facts strengthen the inference that [parolee] might repeat his earlier criminal conduct and suggest [victim] as a possible victim. Under such circumstances we believe it becomes a question of fact as to whether the City acted reasonably in failing to respond to [victim's] report of harassment by alerting her in some manner to [parolee's] past conduct." (Duffy, supra, 179 Cal.App.3d at p. 674.)
Thus, under the additional facts present in Duffy, the court concluded "while [parolee] made no verbal threats to victims, his harassment of [her coupled with his prior criminal conduct made the 'threat' to [her] reasonably foreseeable. Whether the magnitude of that threat required the City to warn [her], i.e., whether the City was negligent, is a question of fact." (Duffy, supra, 179 Cal.Ap.3d at p. 675.)
In the present case, of course, Martin's prior criminal history involved robbery, not kidnapping, rape, and sexual assault. And unlike the just-released parolee in Duffy, Martin's robbery convictions were 31 and 19 years before to his attack on Doe. Moreover, Doe has offered no evidence Martin did anything that reasonably indicated he posed a risk to any of his coworkers, let alone to Doe in particular. Walmart counseled Martin after his unspecified verbal improprieties with customers and coworkers, but this alone does not suggest Martin posed a risk of sexually assaulting other employees.
Thus, the current case is quite different from Duffy. Not only were Martin's prior convictions in this case not sex crimes, but there were no additional circumstances to lead us to conclude anything other than the substance of Doe's complaint is that Walmart was categorically obliged to warn all employees who might come in contact with Martin of his prior criminal conduct. Like the Duffy court, we too are unpersuaded. (Duffy, supra, 179 Cal.App.3d at p. 674.)
In supplemental briefing, Doe argues our Supreme Court's recent decision in Regents, supra, 4 Cal.5th 607, provides a "bright line rule requiring an employer to warn employees of, or protect them from, foreseeable harm." We do not read Regents in the same manner.
In Regents, "[a]fter he enrolled [at UCLA], Damon Thompson experienced auditory hallucinations. He believed other students in the classroom and dormitory were criticizing him. School administrators eventually learned of Thompson's delusions and attempted to provide mental health treatment. However, one morning Thompson stabbed fellow student Katherine Rosen during a chemistry lab. Rosen sued the university and several of its employees for negligence, arguing they failed to protect her from Thompson's foreseeable violent conduct. [¶] This case involves whether, and under what circumstances, a college or university owes a duty of care to protect students like Rosen from harm." (Regents, supra, 4 Cal.5th at p. 613, fn. omitted.) The holding in Regents is actually quite narrow: "Considering the unique features of the collegiate environment, we hold that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities." (Regents, supra, 4 Cal.5th at p. 613, italics added.) Further limiting the scope of its holding, the court observed "[a]lthough comparisons can be made, the college environment is unlike any other." (Regents, supra, 4 Cal.5th at p. 625, italics added.) Thus, Regents is not an employer-employee case, and its analysis cannot be applied here.
Nevertheless, Doe argues a passage from Regents supports her claim for a "bright line holding" establishing Walmart's duty to warn her about "the criminal history and propensity for violence of Martin the rapist." Not so. The passage in question is neither a holding, nor even dicta. Instead, it is an observation: "The Restatement Third of Torts identifies several special relationships that may support a duty to protect against foreseeable risks. In addition to the common carrier and innkeeper relationships previously mentioned, the list includes a business or landowner with invited guests, a landlord with tenants, a guard with those in custody, an employer with its employees, and 'a school with its students.' (Rest.3d Torts, Liability for Physical and Emotional Harm, § 40, subd. (b).)" (Regents, supra, 4 Cal.5th at p. 620, italics added.) We assume Doe's description of Martin as a "rapist" is hyperbole, because no evidence showed Martin was charged with or convicted of raping Doe, and Doe did not allege or show Martin ever raped anyone else. Martin's past record, therefore, gave Walmart no basis to suspect Martin harbored a propensity for sexual violence.
Our review of our opinion affirming Martin's underlying criminal conviction shows Martin was charged with forcible oral copulation (count 1), sexual penetration by a foreign object and force (count 2), and possession of a controlled substance (count 3). A jury found him guilty of counts 1 and 3, and guilty of the lesser included offense of assault on count 2. In a bifurcated proceeding, the jury found true defendant had two prior strikes and two prior serious felony convictions. (People v. Olin Johnston Martin, Jr. (June 22, 2016, G050805 [nonpub. opn.]), slip opn., pp. 2, 5.)
Furthermore, Regents established a university's duty to protect its students as regards curricular activities such as a chemistry lab, not extracurricular activities. Thus, in Regents the Supreme Court concluded a university has a "special relationship" (analogous to the common carrier/passenger or innkeeper/guest relationships) with its students in its classrooms, and "activities that are tied to the school's curriculum," that gives rise to a duty to warn them about or protect them from foreseeable acts of violence. (Regents, supra, 4 Cal.5th at pp. 613, 620, 627.) "The duty we recognize here is not owed to the public at large but is limited to enrolled students who are at foreseeable risk of being harmed in a violent attack while participating in curricular activities at the school." (Id. at p. 633, italics added.) In defining this relationship, the court concluded a university reasonably could foresee that a negligent failure to control a potentially violent student could result in harm. (Id. at p. 629.) Even so, the Supreme Court did not make any determination whether UCLA was or should have been on notice that the particular third party malefactor in the case posed a foreseeable risk of violence, noting that prior threats or violent acts, or other observations of the third party's behavior by UCLA, would determine the standard of care and its breach, if any. (Id. at pp. 630, 634.)
Justice Chin's concurrence in Regents took issue with the majority's extension of a university's duty to warn or protect its students from foreseeable acts of violence "'in the classroom,'" which was the factual background in the case, to all "'curricular activity.'" (Regents, supra, 4 Cal.5th at p. 635 (conc. opn. of Chin, J.).) "[A]ctivities outside the classroom differ in potentially significant ways from activities inside the classroom. As the majority explains, among the relevant factors is the extent of the defendant's control in the particular setting over the environment and third party behavior. [Citation.] As the majority also explains, '[p]erhaps more than any other place on campus, colleges can be expected to retain a measure of control over the classroom environment.' [Citation.] Implicit in this statement is recognition that the extent of a university's control over the environment and student behavior is likely to be considerably less outside of the classroom. Indeed, the extent of a university's control in a nonclassroom setting varies considerably depending on the particular activity and the particular setting." (Id. at pp. 635-636 (conc. opn. of Chin, J.).)
Similar observations are apropos in the employer-employee relationship, where the question is premised on an employer's assumed ability to protect and warn its employees regarding third parties when neither the employee or criminal co-employee is physically present in the workplace. A university is able to — undeniably, expected to — maintain full control of its classroom environments. Indeed, the Regents court emphasized that students' extra-curricular activity cannot reasonably be controlled by a university and, consequently, there is a limit to a university's duty to protect and warn its students. (Regents, supra, 4 Cal.5th at p. 627 ["The special relationship we now recognize is . . . limited. It extends to activities that are tied to the school's curriculum but not to student behavior over which the university has no significant degree of control."])
Although the relationship between a university and its students is qualitatively different, a similar argument may apply to a retailer like Walmart and its ability to control the workplace environment. But even assuming such an ability, when a retailer's employees leave the workplace, or engage in activities outside the workplace, its ability to retain control of their behavior is diminished, if not extinguished. As such, any general, nonspecific duty to protect or warn its off-duty employees becomes less feasible. Simply put, Walmart cannot control what employees do when they leave work, or during their time away from the job.
III.
CONCLUSION
In performing our de novo review, we have viewed the evidence in a light favorable to Doe as the losing party, liberally construed her evidentiary submissions while strictly scrutinizing Walmart's own showing, and resolved any evidentiary doubts or ambiguities in Doe's favor. Even giving Doe the benefit of these favorable rules of construction, we conclude the record lacks specific facts to show that Walmart's alleged negligent hiring, retention, or supervision of Martin — or its failure to discover and warn her of his criminal history — breached a recognizable duty of care. Moreover, assuming such shortcomings, they were not an actual, legal cause of the injuries inflicted on her by Martin. In other words, Walmart showed Doe had not established, and could not reasonably expect to establish, a prima facie case of either duty or causation in this case. (Cf. Saelzer, supra, 25 Cal.4th at p. 769.)
Because we resolve this appeal on the basis of Doe's failure to establish duty and causation, we do not resolve the parties' dispute over the adequacy of Walmart's employee background check protocol, or whether Walmart could have (let alone should have) lawfully conducted a more full-blown criminal background check before hiring Martin, or for that matter any potential employee — whether full-time, part-time, summer, or holiday/seasonal. The issue of the appropriate standard of care assumes a duty exists and is fundamentally a question of whether that duty was breached. On the facts before us, it is an issue we need not resolve. (Cf. Regents, supra, 4 Cal.5th at p. 634.) --------
In making this determination we do not minimize Doe's injuries, nor the damages she has suffered because of Martin's odious criminal activity. Indeed, Martin is currently serving a 35-years-to-life prison sentence for his crimes. Our holding is narrow: On the facts before us, Doe failed to show a disputed material issue of fact on crucial elements of both of her causes of action so as to establish Walmart is responsible for Martin's crimes.
IV.
DISPOSITION
The trial court's judgment following granting Walmart's motion for summary judgment is affirmed. Walmart is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.