Case Number: BC675211 Hearing Date: August 09, 2018 Dept: 34

SUBJECT: Motion for Summary Judgment/Summary Adjudication

Moving Party: Defendants Securitas Security Services, USA, Inc. and Gail Smith

Resp. Party: Plaintiff Robert Cockrell Jr.

The motion is DENIED as to the second cause of action as it pertains to Defendant Securitas.

The motion is GRANTED as to the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action as well as the issue of punitive damages. The motion is also GRANTED as to the second cause of action as it pertains to Defendant Smith.

Defendants’ Objections to Evidence: Given the Court’s decision below, none of the objections interposed are “material to the disposition of the motion.” (CCP § 437c(q).) Therefore, the Court has declined to rule upon them.

Plaintiff’s Objections to Evidence: Plaintiff has filed 99 pages of evidentiary objections containing 114 specific objections to evidence. (Cf., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) The vast majority of these are foundational objections to the admission of various documents. These objections are overruled. The other objections are not “material to the disposition of the motion.” (CCP § 437c(q).) Therefore, the Court has declined to rule upon them.

Defendant’s Request for Judicial Notice is GRANTED as to requests Nos. 1-4 and 6. Request for Judicial Notice No. 5 is DENIED.

PRELIMINARY COMMENTS:

Plaintiff “disputes” virtually every fact listed in Defendants’ Statement of Undisputed Facts. This has resulted in Plaintiff filing a 688-page “Plaintiff’s Responses To Defendants’ Separate Statement Of Undisputed Material Facts In Opposition To Defendants’ Motion For Summary Judgment Or, In The Alternative, Summary Adjudication Of Issues.” Yet Plaintiff rarely asserts a fact that is meaningfully distinguishable from the fact asserted (and disputed) by defendant. This is hardly good advocacy and does not advance counsel’s client’s interests.

BACKGROUND:

Plaintiff commenced this action on 09/07/17. On 12/15/17, plaintiff filed a First Amended Complaint (“FAC”) against defendants for:

(1) retaliation;

(2) negligence;

(3) negligent hiring and/or supervision;

(4) intentional infliction of emotional distress;

(5) negligent infliction of emotional distress;

(6) false imprisonment;

(7) fraud;

(8) negligent misrepresentation;

(9) defamation/slander;

(10) constructive wrongful termination in violation of public policy; and

(11) unfair business practices.

This action arises out of plaintiff’s former employment as an armed security guard. He alleges that defendant failed to properly register the gun that was issued to him and failed to respond to police officers’ attempts to confirm that plaintiff was approved to possess the gun. As a result, plaintiff alleges that he was arrested and subsequently constructively terminated from his employment with defendant.

ANALYSIS:

Defendants Securitas Security Services USA, Inc. and Gail Smith move for summary judgment, or, in the alternative, for summary adjudication of thirty-one separate issues encompassing each of plaintiff’s eleven causes of action and request for punitive damages. (See Notice of Motion, p. 1:7-4:22.)

Factual Background

Plaintiff began working for Securitas as an armed security guard in April 2017. (DMF/PMF 1; PAMF 3.) Soon after beginning his employment, plaintiff met with Jorge Nunez, Securitas’ “Scheduler” and was provided with a company-issued gun. (DMF/PMF 13.) Securitas’ policy requires that all company issued firearms are to remain unloaded and stored in the trunk, or other locked compartment of a vehicle, while being transported to or from any client site. (DMF/PMF 6.) Nunez also told plaintiff that he can reach Securitas at any time of day in an emergency. (DMF 15.) Plaintiff believed this information to be particularly important because of the possibility that he could be detained or arrested while traveling with the gun and Securitas personnel would be able to verify his identity and that he properly possessed the gun.

In accordance with then-current California law, Securitas could not own the company-issued guns in its own name. (DMF 22.) As a result, private security companies, like Securitas, “would have a manager or supervisor buy and register the firearm to his name, and loan the firearm to a security guard under California Penal Code §27880. (DMF 23.) Hector Romero, the branch manager at Securitas’ Los Angeles branch, purchased the firearm that was issued to Plaintiff from a gun dealer in 2009. (DMF 18.) Romero provided the gun dealer with a letter stating that he was Securitas’ representative. (DMF 20.) The gun was then registered in Romero’s name but he subsequently transferred the firearm to Securitas’ Commerce branch. (DMF 24.) In 2016, the law changed, allowing private security companies to register guns in their own name. (DMF 27.) However, a November 2017 bulletin from California DOJ advised firearm dealers to continue registering firearms in the name of the security company’s representative because the system would be unable to recognize a business as a firearm owner until July 2019. (DMF 28.)

Plaintiff’s first assignment was to work as an armed security guard at a DHL facility. (DMF 30.) He was paid $15.00 per hour and worked at DHL for approximately 21 days. (DMF 31, 32.) Defendant asserts that on or about May 10, 2017, DHL requested that plaintiff be removed from his post because he had disclosed internal security matters to unauthorized individuals. (DMF 37.) Plaintiff disputes the reason for his removal but concedes that he was removed from his post and reassigned. (PMF 37.) On or about May 16, 2017, plaintiff was offered a reassignment to an unarmed position at a Walmart; this position paid approximately $12.50 per hour. (DMF 42-44.) Plaintiff accepted the reassignment. (DMF/PMF 45.)

Although he was reassigned to an unarmed position, plaintiff asserts that defendant’s representative, Nunez “advised that the reassignment to Wal-Mart was temporary and since Plaintiff was qualified to be an armed guard, he could be put to use at different armed positions if needed.” (PAMF 25.) Nunez advised plaintiff to keep the gun and “to always be prepared in case he needed to go to an armed position.” (PAMF 25.)

Plaintiff was arrested on the night of May 27, 2017. There is some dispute as to whether he was actually working a shift at Wal-Mart that evening. (See DMF/PMF 49.) It appears that, at the very least, he reported for work at approximately 10pm on May 27 and may have left when it appeared that too many security personnel were present. (DMF/PMF 49.) Later that evening, at approximately 12:11 a.m., plaintiff’s car was stopped by two Los Angeles County Sheriff’s deputies. The parties offer drastically different accounts of what happened next.

According to plaintiff, he immediately informed the deputies that he was an armed security guard who was heading home from work and had a gun secured in the trunk. (PAMF 45.) The deputies subsequently discovered that the gun was registered in Romero’s name and plaintiff represented that he did not know who Romero was. (PAMF 47-48.) At plaintiff’s request, the deputies called several Securitas phone numbers in an attempt to verify his employment and that he properly possessed the gun. (PAMF 49.) Plaintiff asked the deputies to call Jorge, Miguel, the rover, and a supervisor. (PAMF 49.) The phone calls were not answered and plaintiff was arrested because the gun was not registered to him. (PAMF 51.)

Defendants cite to the police report, which indicates that upon stopping plaintiff’s vehicle, one depute observed three partially empty and full alcohol bottles in the front passenger floorboard. (DMF 51.) The other deputy asked whether plaintiff had any weapons and plaintiff responded that he had a gun in the center console. (DMF 52.) The deputies recovered the gun from the center console and they reported that the gun was not secured in any lockable container. (DMF 53, 54.) The police report reflects that the deputies called Nunez’s work cell phone number and the Long Beach office’s main phone number, but that no one answered the calls. (DMF58.)

All of the allegations in the FAC arise out of plaintiff’s arrest. He asserts that defendants are liable for failing to prevent his arrest, for allowing him to remain in custody after his arrest, that defendants made certain defamatory representations about the reason for his arrest, and that they took certain unlawful adverse employment actions against him as a result of his arrest.

Second Cause of Action (Issues # 4-5) — Negligence

Defendants move for summary adjudication of the second cause of action on the grounds that plaintiff cannot present evidence that defendants breached a duty of care or that any such breach proximately caused plaintiff’s injury. (See Notice of Motion, p. 1:26-2:3.)

Relevant Law

“The elements of a cause of action for negligence are: duty; breach of duty; legal cause; and damages.” (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463.)

Duty

“The determination of duty is primarily a question of law.” (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46.) “While the question whether one owes a duty to another must be decided on a case-by-case basis,[Fn. omitted] every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. [Citation.] However, foreseeability of the risk is a primary consideration in establishing the element of duty.” (Ibid.) “While duty is a question of law, foreseeability is a question of fact for the jury.” (Ibid.)

“Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714(a).) A departure from this principal may be supported by several considerations, including “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113. Accord Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.)

Causation

“Plaintiff must establish the requisite causal connection between defendant’s conduct and plaintiff’s injury.” (Wiseman & Reese, Cal. Prac. Guide: Civ. Proc. Before Trial Claims & Defenses (The Rutter Group 2017) ¶ 6:190.) “Defendant’s negligence is the actual cause (cause in fact) of plaintiff’s injury if it is a substantial factor in bringing about the harm”; it need not be the sole cause. (Id. at ¶¶ 6:191-6:192.) “The proximate cause doctrine relieves defendants from liability for injuries they in fact caused, based on considerations of policy and justice.” (Id. at ¶ 6:193.)

“Actual causation is an entirely separate and independent element of the tort of negligence.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) “[T]o demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor’ in bringing about the injury. [Citations.] In other words, plaintiff must show some substantial link or nexus between omission and injury.” (Ibid.) “No matter how inexcusable a defendant’s act or omission might appear, the plaintiff must nonetheless show the act or omission caused, or substantially contributed to, her injury. Otherwise, defendants might be held liable for conduct which actually caused no harm, contrary to the recognized policy against making landowners the insurer of the absolute safety of anyone entering their premises.” (Id. at p. 780.)

“Although proof of causation may be by direct or circumstantial evidence, it must be by ‘substantial’ evidence, and evidence ‘which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient.’ [Citation.]” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484.)

Discussion

Plaintiff alleges that defendants were negligent because they owed him a duty of care and breached that duty by:

“(1) failing to ensure the gun was properly registered for his use in the course of his employment in order to prevent an arrest and (2) by failing to ensure an employee was available via phone at all hours of the day given Mr. Nunez statement that other Securitas employees possessing a Securitas hand gun have been pulled over and detained by the police or sheriffs in the past and were subsequently released after confirmation of their employment with Securitas by contacting their Field Supervisor or Rover Supervisor.”

(FAC ¶ 49.) He alleges that it was “reasonably foreseeable that their actions and failures to act would cause serious damages . . . including an arrest and subsequent jail time.” (Id. at ¶ 54.) Plaintiff was, in fact, arrested. Thus, as a “direct and proximate result” of defendants’ breach, “plaintiff has suffered and continues to suffer loss of income, loss of earning capacity, loss of job opportunity, and other economic damages.” (Id. at ¶ 54.)

Defendants argue that they are entitled to summary adjudication of this cause of action because plaintiff cannot show that they breached a duty of care to him and that even if plaintiff can establish breach, he cannot show that the was the “but for” cause of his arrest. (See Motion, p. 9:8-11:3.)

Breach

First, defendant argues that it did not breach a duty to plaintiff because, despite his allegations to the contrary, the gun was properly registered. (See Motion, p. 9:12-17.) Defendant Smith further argues that she “did not register the firearm at issue, so she could not have breached the alleged duty to plaintiff.” (Id. at p. 9:14-15.)

Defendants explain that, at all relevant times, “California law allowed only individuals to register a firearm through the [Dealer Record of Sale (“DROS”)] system” and that Private patrol operations (“PPOs”) like Securitas would have a manager or supervisor buy and register the firearm to his name, and loan the firearm to a security guard under California Penal Code § 27880.” (Motion, p. 3:13-16; DMF 22, 23.) Accordingly, Securitas’ branch manager, Hector Romero purchased the guns issued to defendant’s security guards and had the guns registered in his own name. (Motion, p. 3:7-12; DMF 18-21.) The gun that was issued to plaintiff was properly registered to Romero. (See Motion, p. 3:17-4:1; DMF 24-28.)

Second, defendants argue that plaintiff has been unable to present any evidence in support of his claim that defendant dialed to have an employee available by phone at all times in the event of an emergency such as plaintiff’s arrest. (See Motion, p. 9:18-27.) Plaintiff has alleged “that Nunez told him to contact his field or rover supervisor if pulled over by the policy and detained because of a company-issued firearm” but the records show that “the arresting deputies did not call a field or rover supervisor’s phone number during Plaintiff’s arrest.” (Id.at p. 9:22-26; DMF 15, 58.)

In opposition, plaintiff appears to concede his claim that the gun was not properly registered but argues that defendants breached their duty to him by failing to answer the phone on the night of his arrest. (See Opposition, p. 12:5-12.) He explains that he, “through the arresting deputies, attempted to contact any and all phone numbers that Securitas provided Plaintiff in order to verify Plaintiff’s employment and the firearm registration. These calls included calls to Nunez’s work cell phone number and the general number to Securitas’ Long Beach office.” (Id. at p. 12:5-8; Plaintiff’s Additional Material Facts [PAMF] 49, 50.) Plaintiff further explains that:

“At or around the time of Plaintiff’s arrest, field supervisors shared a single phone that was handed-off and passed on to field supervisors to cover every shift. In or about May or June of 2017, John Timberlake, Securitas’ Long Beach AVP, created a dispatch center to oversee all after-hours calls to Securitas. If employees dialed the Torrance, Long Beach, or Commerce main offices lines, they are automatically transferred to the after hours dispatch.”

(Id. at p. 3:12-16; PAMF 35, 67.)

In reply, defendants fail to rebut plaintiff’s explanation. They argue that the police report indicates that the arresting officers only called “scheduler Jorge Nunez’s work cell phone and the general number to the Long Beach office — not a number to a field supervisor.” (Reply, p. 2:18-20; DMF 58.) Defendants’ effectively concede that they had a duty to answer plaintiff’s call, but only if he called a field or rover supervisor in accordance with the company’s policy. Because Nunez and the Long Beach office’s general number are not the appropriate supervisors, defendant could not have breached a duty to answer the call. This argument ignores plaintiff’s evidence that there may have been a system in place that allowed security guards to call the Long Beach main office line and have their call automatically forwarded to the appropriate supervisor.

The police report indicates that the arresting officers attempted to call the Long Beach office and that the call was not answered. Accordingly, plaintiff has raised a triable issue of fact with respect to the issue of breach.

However, the above analysis extends only to the issue of the breach of duty of Defendant Securitas. Plaintiff has presented no material evidence that Defendant Smith breached any duty to him.

Causation

Defendants argue that even if they breached a duty to plaintiff, he will be unable to “Demonstrate that these omissions were a ‘but for’ cause of his arrest and incarceration.” (Motion, p. 10:3-4.) This is because the police report filed by the arresting officers directly contradicts the allegations in the FAC. Plaintiff alleges that, when he was pulled over, the gun was stored “in the trunk of his car in a lock box, with the clip in his glove box.” (FAC ¶ 18.) Upon being pulled over, he:

“immediately alerted the Sheriff to the fact that he was an armed security guard leaving his shift and accordingly possessed a handgun in his vehicle. Plaintiff informed the Sheriff that the handgun was provided to him by Defendants. Plaintiff provided the Sheriff with his guard registration permit and an exposed firearm permit. The Sheriff further requested proof of registration of the handgun.”

(Id. at ¶ 19.) Plaintiff alleges that he was never provided with a copy of the registration and that the sole cause of his arrest was the officers’ inability to speak with a representative from Securitas who could confirm his identity and that he was properly in possession of the gun. (See FAC ¶¶ 20-22.)

The police report tells a far different story. The arresting officers report that they asked plaintiff whether he had a weapon and he replied, “I have a gun in the center console for my protection, I’m a security guard.” (Def.’s Exh. 19, p. 3, ¶ 2.) Deputy Juarez subsequently recovered the gun from the center console. (Id. at ¶ 3.) The report indicates that “[t]he handgun was not stored in any lockable container or case.” (Ibid.) When asked why the handgun was in the center console, plaintiff reportedly responded that he “had just gotten off of work, and did not have time to go home and lock the gun away because he had picked up Miss Newman.” (Id. at ¶ 4.) The arresting officers also “observed three partially empty and full alcohol bottles on the from passenger floorboard in plain sight.” (Ibid.) The report concludes by explaining that “Based on the fact Cockrell was driving a motor vehicle with a loaded firearm in the passenger cabin, the gun was not registered to him, he did not know who the registered owner of the gun was, and the fact he indicated he had been in possession for approximately two months, we placed him under arrest.” (Id. at p. 4, ¶ 1.)

Based on the police report, defendants argue that plaintiff’s speculation that he would not have been arrested or remained in jail had defendants answered the phone and confirmed his employment is not supported by the evidence. (See Motion, p. 10:18-18-20.) Indeed, Securitas personnel “spoke with a detective and confirmed Plaintiff’s employment and the firearm’s owner during the two days after Plaintiff’s arrest. Still, on the third day after Plaintiff’s arrest, Plaintiff was charged with a violation of Penal Code § 25400(a)(1).” (Id.at p. 10:23-26.)

In opposition, plaintiff argues that there is substantial evidence indicating that defendant’s failure to answer the calls was the cause of his arrest. First, he disputes that the gun was found in the center console and maintains that it was locked in the trunk. (See PAMF 41, 45, 46.) Next, he explains that the officers could have arrested him immediately upon discovering that the gun was registered to Romero but:

“[r]ather than immediately arrest Plaintiff for alleged transportation of a loaded firearm, the deputies went through painstaking efforts to contact Securitas to verify the gun ownership, including but not limited to, making multiple calls to both Nunez and Securitas’ main line. It was only after these calls were unsuccessful and the officers were unable to verify Plaintiff’s employment and the gun’s registration that Plaintiff was arrested for possession of a firearm that was not registered to him.”

(Opposition, p. 12:28-13:5; PAMF 50, 51.)

Although the police report appears to indicate that the officers had sufficient independent reasons to arrest plaintiff, he has presented circumstantial evidence suggesting that the arresting officers believed that it was necessary to attempt to verify his claims by calling Securitas. It remains possible that, had a supervisor answered the phone and confirmed plaintiff’s employment, he would not have been arrested. It is not necessary that defendants’ breach be the sole cause of plaintiff’s harm; it is only necessary that it be a substantial cause of the harm.

Here, plaintiff has raised a triable issue of material fact as to whether defendant’s breach was the cause of his harm.

Accordingly, the Court DENIES summary adjudication of the second cause of action as to Defendant Securitas. The Court GRANTS summary adjudication as to the second cause of action as to Defendant Smith

First Cause of Action (Issues # 1-3) — Retaliation

Plaintiffs moves for summary adjudication of the first cause of action on the grounds that plaintiff cannot establish a prima facie case of retaliation, that defendant Securitas has a legitimate non-retaliatory reason for the alleged adverse employment actions, and that plaintiff cannot present evidence of pretext or intentional retaliation. (See Notice of Motion, p. 1:19-25.)

Relevant Law

The FEHA makes it unlawful “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940(h).)

“Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

“It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

To establish a cause of action for retaliation under FEHA, a plaintiff must show: “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)

Discussion

Plaintiff alleges that he engaged in protected conduct by “complaining to the Los Angeles Sheriff and also Securitas employees, including Vice President Mark Miller, that Securitas failed to properly register the handgun or provide him with sufficient information to demonstrate that he legally possessed the gun provided to him in the course of his employment.” (FAC ¶ 39.) In retaliation for these complaints, defendants “[left] him in jail for nearly one week, suspend[ed] his position, and ultimately demot[ed] him to a lesser paying position.” (FAC ¶ 40.)

Defendants argue that they are entitled to summary adjudication of this cause of action because plaintiff cannot establish a prima facie claim for retaliation. First, any complaint that he made regarding the gun’s registration is not protected because he did not have a reasonable belief that the gun was not properly registered. (See Motion, p. 11:19-22 [citing Carter v. Escondido Union High Sch. Dist. (2007) 148 Cal.App.4th 922, 933-934 (finding plaintiff’s disclosure not protected under whistleblower statute because, in part, the evidence did not demonstrate plaintiff’s belief was ‘reasonable.”)].) Plaintiff appears to abandon this theory in his opposition, supporting defendant’s claim that he had no reasonable belief that it was true. (See Opposition, p. 15:23-16:17.) This is fatal to his claim. A retaliation claim requires a plaintiff to show that he engaged in some protected activity and that defendant retaliated because of that protected activity. Defendants have presented uncontradicted evidence showing that the gun was properly registered and plaintiff fails to offer any explanation as to how or why he may reasonably have believed otherwise. Accordingly, the Court finds that plaintiff did not engage in any protected activity.

The Court GRANTS summary adjudication of the first cause of action.

Third Cause of Action (Issues # 6-9) — Negligent Hiring and/or Supervision

Defendants move for summary adjudication of the third cause of action on the grounds that defendant Securitas had no prior knowledge of Gail Smith’s alleged propensity to engage in incompetent behavior, that there is no evidence that Gail Smith had such a propensity or actually engaged in such behavior, and that the claim is preempted by workers compensation exclusivity. (See Notice of Motion, p. 2:4-15.)

Relevant Law

The elements of a claim for negligent hiring, supervision, or retention are: (1) the employer’s hiring, supervision, or retention of an employee; (2) the employee is incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.)

“‘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.]” [Citation.] “In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment. [Citations.]” [Citation.]

(Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 368.)

Discussion

Plaintiff alleges a cause of action for negligent supervision and hiring based on the actions of defendant Gail Smith, who is a human resources manager for Securitas (FAC ¶¶ 58, 59, 25.) Plaintiff alleges that Ms. Smith wrongfully informed his mother that plaintiff “was arrested because of an outstanding warrant, despite having no proof of the fabricated claim” and “provided Plaintiff with a letter stating Securitas ‘management was made aware that you were arrested on May 29, 2017, in connection to a warrant.’” (FAC ¶¶ 25, 29.)

Defendants move for summary adjudication of this claim on the ground that, among other things, the claim is preempted by the exclusive remedy provision of the workers’ compensation law. (Motion, p. 14:2-4 [citing Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606.)

Plaintiff fails to address this argument in his opposition.

“Workers’ compensation is generally the exclusive remedy for workplace injuries caused by coworkers. This includes claims based on the employer’s alleged negligence in hiring, supervising or retaining the coworkers who caused the injury.” (Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2017) ¶ 5:817.)

The Court GRANTS summary adjudication of the third cause of action.

Fourth Cause of Action (Issues # 10-12) — Intentional Infliction of Emotional Distress

Defendants move for summary adjudication of the fourth cause of action on the grounds that plaintiff has no evidence that defendants engaged in outrageous conduct, intended to cause emotional distress, or that their alleged actions actually caused his emotional distress. (See Notice of Motion, p. 2:16-24.)

Relevant Law

The tort of intentional infliction of emotional distress is comprised of the following elements: (1) defendant’s extreme and outrageous conduct; (2) intention of causing emotional distress, or reckless disregard of the probability of causing emotional distress with knowledge of plaintiff’s presence when the conduct occurred; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the conduct was the actual and proximate causation of the emotional distress. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009. See also Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Outrageous conduct is not a bright line determination but depends upon an intuitive appraisal of “values, sensitivity threshold, and standards of civility.” (Kovr Tv, Inc. v. Superior Court (1994) 31 Cal.App.4th 1023, 1028.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.'” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 1051.) “‘There is no bright line standard for judging outrageous conduct and “‘… its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical….’ [Citation.]” [Citation.]’ [Citation.]” (Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 671.) “Thus, whether conduct is ‘outrageous’ is usually a question of fact. [Citations.]” (Ibid.)

Severe emotional distress is defined as “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) General allegations of emotional distress are not sufficient; instead, a plaintiff must set forth facts indicating the nature and extent of the mental suffering. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)

Ordinarily, personnel management activity is not sufficient to support an IIED claim. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) “A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Ibid.) However, where the IIED claim is based on plaintiff’s employer’s violations of fundamental public policies, the misconduct is not considered to be a normal part of the employment relationship. (See Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658.)

Discussion

Plaintiff’s IIED claim is based on the allegedly outrageous conduct of “(1) failing to ensure the gun was properly registered for his use in the course of his employment in order to prevent an arrest and (2) by failing to ensure an employee was available via phone at all hours of the day . . . .” (FAC ¶ 64.) He alleges that this conduct was “directed toward him by the Defendants . . . with the intent of causing, or reckless disregard of the probability of causing, Plaintiff emotional distress.” (FAC ¶ 63.)

Defendants argue that plaintiff’s claim fails because all of the alleged acts, even if true, would constitute personnel management activity and is therefore not actionable. (See Motion, p. 14:10-13.) Furthermore, to the extent that plaintiff’s claim is based on “Smith’s statement as to the basis of his arrest, his demotion, and constructive termination, those too are insufficient.” (Id. at p. 14:13-15 [citing Cochran v. Cochran 65 Cal.App.4th 488, 494-499.)

Plaintiff does not appear to contest this issue in his opposition. Further, given that the Court is granting summary adjudication on all issues other than the negligence cause of action (as to Defendant Securitas), there is not basis for an IIED claim.

Accordingly, the Court GRANTS summary adjudication of the fourth cause of action.

Fifth Cause of Action (Issue # 13) — Negligent Infliction of Emotional Distress

Defendants move for summary adjudication of the fifth cause of action on the ground that the underlying negligence claim fails as a matter of law. (See Notice of Motion, p. 2:25-26.)

Relevant Law

“A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1377.)

Discussion

Defendants argue that they are entitled to summary adjudication of this cause of action because “there is no independent tort of negligent infliction of emotional distress.” Plaintiff is correct that there is conflicting case authority as to whether such a cause of action exists.

However, denying the Motion for Summary Adjudication as to this cause of action would not help plaintiff’s case. Plaintiff could not gain anything under a cause of action for NIED that he would not get from his second cause of action for negligence. Further, such an additional cause of action might well confuse a jury.

Therefore, the Court GRANTS summary adjudication of the fifth cause of action.

Sixth Cause of Action (Issues # 14-15) — False Imprisonment

Defendants move for summary adjudication of the sixth cause of action on the grounds that defendants did not direct or instigate plaintiff’s arrest and because their alleged failure to respond to plaintiff’s request for assistance is privileged. (See Notice of Motion, p. 2:27-3:3.)

Relevant Law

The tort of false imprisonment tort “consists of the ‘“nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.” ’ [Citation.]” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.)

Discussion

Plaintiff alleges that defendants are liable for false imprisonment because he “was led to carry a handgun in the course of his employment under false pretenses knowingly and intentionally orchestrated by Defendants.” (FAC ¶ 77.) As a result, defendants “intentionally caused Plaintiff to be arrested without a warrant” resulting in harm to plaintiff. (FAC ¶¶ 78, 79.) Plaintiff’s claim also presumably rests on his prior allegations that defendants caused his arrest by failing to properly register the gun and failing to answer the phone calls to confirm his employment.

Defendants argue that they are entitled to summary adjudication of this claim because there is simply no evidence that they intentionally caused his arrest or “direct or instigate the Sheriff Deputies to arrest Plaintiff.” (Motion, p. 15:7-9 [See Hughes v. Oreb, (1951) 36 Cal.2d 854, 859 (to be liable for false arrest, the defendant ‘must have taken some active part in bringing about the unlawful arrest”); Chau Van v. City of Oakland (N.D. Cal. 2015) 2015 WL 995127, at *18 (false imprisonment claim failed because although defendants ‘played a part in initiating a chain of events that eventually ‘led to plaintiff’s arrest, defendants did not direct or instigate the arrest)].)

Plaintiff asserts that his claim is valid because a defendant may be liable for false imprisonment if they “knowingly [give] the police false or materially incomplete information, of a character that could be expected to stipulate an arrest.” (Opposition, p. 16:24-26 [quoting Du Lac v. Perma Trans Prods., Inc. (1980) 103 Cal.App.3d 937, 942].) He asserts that defendants actions meet this standard because they failed to answer the deputies’ phone calls and subsequently “did little to nothing to investigate or assist Plaintiff in getting out of jail.” (See Id. at p. 17:2-10.)

This argument merely repackages plaintiff’s negligence theory but it is insufficient to support a claim for false imprisonment. Plaintiff’s claim fails even by the standard that he sets forth: Du Lac v. Perma Trans Prods., Inc. requires a defendant to “knowingly [give] the police false or materially incomplete information.” (Du Lac, supra, at p. 942.) Here, plaintiff faults defendants for not giving the police any information: he claims that they did not answer the phone calls and did not make satisfactory efforts to secure his release. And, as explained by defendants, plaintiff has not shown that they had the specific intent to cause his arrest. At best, he has argued that they were negligent in failing to prevent his arrest.

The Court GRANTS summary adjudication of the sixth cause of action.

Seventh Cause of Action (Issues # 16-19) — Fraud

Defendants move for summary adjudication of the seventh cause of action on the grounds that plaintiff has no evidence that Miguel Cazares and Jorje Nunez made a misrepresentation, that they knew their alleged statements were false, that they intended to defraud plaintiff, or that any alleged misrepresentation proximately caused plaintiff’s injury, arrest, and incarceration. (See Notice of Motion, p. 3:4-14.)

Relevant Law

The elements of a fraud claim are: (1) misrepresentation of a fact (or concealment); (2) knowledge of falsity; (3) intent to defraud (to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Buckland v. Threshold Enters., Ltd. (2007) 155 Cal.App.4th 798, 806 807 [disapproved of on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310].)

Discussion

Plaintiff alleges that defendants are liable for fraud because “(1) Mr. Cazares and Mr. Nunez’s statements that the handgun was properly registered for Plaintiff’s use in the course of his employment and (2) Mr. Nunez’s promise to that Securitas supervisor would be available via phone at all hours of the day.” (FAC ¶ 82.) These representations were allegedly false and were made “recklessly and without regard for their truth” and “Defendants had no reasonable grounds for believing the representation were true when they were made.” (FAC ¶¶ 82, 83.) Plaintiff further alleges that defendant intended that he would rely on these representations and that he reasonably relied to his detriment. (FAC ¶ 84.) He would not have accepted the gun were it not for Mr. Nunez’s statement that Securitas would make someone available to speak to the police in an emergency. (Ibid.)

Defendants move for summary adjudication on the ground that plaintiff:

“fails to explain how Cazares and Nunez knew the firearm was not properly registered or that a field supervisor would not be available all day and night. Simply because Plaintiff believes the firearm was not lawfully registered or that a Securitas supervisor was unavailable during his arrest does not suffice to show knowledge or intent to defraud.”

(Motion, p. 16:7-10; See Tenzer v. Superscope, Inc. (1985) 39 Cal. 3d 18, 30 [“[S]omething more than nonperformance is required to prove the defendant’s intent not to perform his promise.”].)

Plaintiff appears to have abandoned his fraud claim; his opposition does not address this issue. The Court finds that defendants’ evidence is sufficient to carry its initial burden on a motion for summary judgment.

Accordingly, the Court GRANTS summary adjudication of the seventh cause of action.

Eighth Cause of Action (Issues # 20-22) — Negligent Misrepresentation

Defendants move for summary adjudication of the eighth cause of action on the grounds that plaintiff has no evidence that Miguel Cazares and Jorge Nunez made a misrepresentation, that they lacked a reasonable ground for believing the statements, or that the alleged misrepresentation proximately caused plaintiff’s injury, arrest, and incarceration. (See Notice of Motion, p. 3:15-23.)

Relevant Law

“The elements of negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 196.)

Discussion

Plaintiff’s negligent misrepresentation claim is based on the same allegations as his intentional fraud claim: that he was told that the gun was properly registered and that a supervisor would be available to speak to the police in the event that he was arrested. (See FAC, ¶ 90.)

As noted above, plaintiff appears to have abandoned his theory that the gun was not properly registered and does not address that issue with respect to his negligent misrepresentation claim. (See Opposition, p. 13:9-14:2.) Plaintiff’s claim that defendant negligently misrepresented that “a Securitas supervisor would be available via phone at all hours of the day” (Opposition, p. 13:21) is not the proper subject of a claim for negligent misrepresentation as it relates to a future event and not a past or existing fact.

Accordingly, the motion is GRANTED as to the eighth cause of action.

Ninth Cause of Action (Issues # 23-24) — Defamation/Slander

Defendants move for summary adjudication of the ninth cause of action on the grounds that plaintiff cannot present evidence of a publication and that defendant Smith’s alleged statements to plaintiff and his mother are privileged. (See Notice of Motion, p. 3:24-28.)

Relevant Law

“The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) A statement is defamatory where it lowers the esteem of the person in the community or deters people from associating with the person. (Wiseman & Reese, Cal. Prac. Guide: Pro. Trial Claims and Def. (The Rutter Group 2015) ¶ 4:335.)

Slander is a form of defamation (Civ.Code, § 44), consisting of a false and unprivileged oral publication (Civ.Code, § 46). To establish a prima facie case for slander, a plaintiff must demonstrate an oral publication to third persons of specified false matter that has a natural tendency to injure or that causes special damage. [Citation.] Certain statements are deemed to constitute slander per se, including statements (1) charging the commission of crime, or (2) tending directly to injure a plaintiff in respect to the plaintiff’s business by imputing something with reference to the plaintiff’s business that has a natural tendency to lessen its profits. (Civ.Code, § 46(1); Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 829, 159 Cal.Rptr. 98.) Slander per se is actionable without proof of special damage.

(Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106-107.)

“where on person makes a statement to another about a matter in which they are both interested, the statement is privileged if made without malice.” (Wiseman & Reese, supra, at ¶ 4:435.) A common interest “refers to a direct and immediate concern shared by the speaker and the hearer, such as financial or organizational interest.” (Id. at ¶ 4:436.)

Discussion

Plaintiff’s defamation claim arises from the allegations that he “requested that his mother attempt to reach Defendants” and that defendant Smith informed his mother that “Plaintiff was arrested because of an outstanding warrant, despite having no proof of the fabricated claim.” (FAC ¶¶ 24, 25.) Later, Ms. Smith “provided Plaintiff with a letter stating Securitas ‘management was made aware that you were arrested on May 29, 2017, in connection to a warrant.’” (FAC ¶ 29.) Plaintiff further alleges that these defamatory statements were published “to third persons and to the community,” including “other agents and employees of Defendants, and each of them, and the community.” (FAC ¶¶ 97, 98.)

Defendants move for summary adjudication of plaintiff’s defamation claim on the ground that the allegedly defamatory statements either were not published or that any publication was privileged. (See Motion, p. 16:23-17:28.) The conversation with plaintiff’s mother does not constitute a “publication” because plaintiff’s mother was acting as his agent, which “is thus equivalent to speaking to Plaintiff himself.” (Id. at p. 17:5-8 [citing Martinelli v. Int’l House USA (2008) 161 Cal.App.4th 1332, 1338].) Additionally, defendants argue that plaintiff will be unable to show that the allegedly defamatory letter was “shared with anyone other than Plaintiff and, consequently, there was no publication.” (Id. at p. 16:28-17:1.) Defendants further argue that any internal publication of the letter is privileged on common interest grounds which would require plaintiff to show malice, rather than mistake. (Id. at p. 17:11-28.)

Plaintiff appears to concede that defendant Smith’s conversation with his mother does not constitute a publication. (See Opposition, p. 17:13-8:6.) However, he maintains that the letter containing the false statement was “given to Plaintiff, put in an investigative file, and provided to in-house legal, outside counsel and Joel Hayes.” (Id. at p. 17:28-18:1.) He argues that this “is prima facie evidence that publication of this false information went beyond disclosure to simply Plaintiff and his mother and extended to Hayes and/or other third parties.” (Id. at p. 18:3-5.) Plaintiff previously identified Joel Hayes as Securitas Employee Relations Manager who had responsibility for “ensuring that his Region complies with policies and procedures, state law, and federal law. He also handles internal complaints . . . [and] is involved in determining whether an employee must be terminated in cases where there is an investigation.” (Opposition, p. 8:25-28.)

The evidence presented by plaintiff indicates that all individuals to whom the letter was published shared a common organizational interest in matters relating to employee discipline or legal troubles. (See Wiseman & Reese, supra, at ¶ 4:436.) Placing the letter in the investigatory file, and publishing to defendant’s legal counsel as well as its Employee Relations Manager responsible for making decisions about termination are precisely the type of individuals who have an interest in the information. As a result, plaintiff bears the burden of showing that the false statement was made maliciously. Plaintiff fails to address the issue of malice.

Accordingly, the motion is GRANTED as to the ninth cause of action.

Tenth Cause of Action (Issues # 25-26) — Constructive Wrongful Termination

Defendants move for summary adjudication of the tenth cause of action on the grounds that plaintiff cannot establish that Securitas intentionally or knowingly created or allowed intolerable working conditions and that plaintiff has no evidence that he was terminated for any reason that violates public policy. (See Notice of Motion, p. 4:6-11.)

Relevant Law

The elements of a constructive termination in violation of public policy include: (1) plaintiff was employed by defendant; (2) plaintiff was subjected to working conditions that violated public policy; (3) defendant intentionally created or knowingly permitted these working conditions; (4) the working conditions were so intolerable that a reasonable person in plaintiff’s position would have had no reasonable alternative except to resign; (5) plaintiff resigned because of these working conditions; (6) plaintiff was harmed; and (7) the working conditions were a substantial factor in causing plaintiff’s harm. (CACI 2432; see also Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”].)

It is not dispositive that plaintiff resigned and was not terminated. “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner, 7 Cal.4th at pp. 1244-1245.)

In order to amount to a constructive discharge, adverse working conditions must be unusually “aggravated” or amount to a “continuous pattern” before the situation will be deemed intolerable. [footnote omitted.] In general, “[s]ingle, trivial, or isolated acts of [misconduct] are insufficient” to support a constructive discharge claim. [Citation.] Moreover, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.

(Turner, supra, at p. 1247.)

“Whether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact.” (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056; see also Thompson v. Tracor (2001) 86 Cal.App.4th 1156, 1170-1171 [“[The] determination that the ‘reasonable employee’ would have been compelled to quit . . . is quintessentially a jury function.”].) “Situations may exist, however, where the employee’s decision to resign is unreasonable as a matter of law.” (Valdez, 231 Cal.App.3d at p. 1056.)

Discussion

Plaintiff’s constructive termination claim is based on all of the alleged wrongs committed by defendants. In addition to failing to prevent or remedy the circumstances leading to plaintiff’s arrest, he alleges that defendants refused to reimburse expenses related to his arrest, suspended his employment as a result of the arrest and, after his employment was reinstated, “offering Plaintiff a position as an unarmed security guard at two-thirds his previous hourly rate, rather than reinstate Plaintiff in his prior position. (FAC ¶¶ 30, 34.)

Defendants move for summary adjudication of this claim on the grounds that “none of these circumstances, individually or in combination, amount to a constructive termination claim.” (Motion, p. 18:11-13.) As set forth in more detail above, there is no evidence to support the claim that the gun was not properly registered and plaintiff appears to have abandoned this theory. Defendants’ alleged failure to answer the phone on the night of plaintiff’s arrest was, at most, negligent, and would not support the intentional or knowing standard necessary for a constructive termination claim. Defendants further argue that their refusal to reimburse plaintiff’s arrest-related expenses is not actionable:

“Plaintiff was arrested after violating company policy and state law by carrying a firearm inside the center console of his vehicle. Securitas thus has a legitimate basis to refuse reimbursement for his arrest-related expenses.”

(Motion, p. 18:14-17 [citing Simers v. L.A. Times Commc’ns, LLC (2018) 18 Cal.App. 5th 1248, 1271.) Defendant also argues that the reassignment to an unarmed guard position cannot support a claim for constructive termination because “Securitas reassigned Plaintiff to an unarmed guard position with less pay several weeks before his arrest and a month before his purported resignation.” (Id. at p. 18:26-28.) Finally, the suspension is not actionable because “Securitas facially applied a neutral policy by suspending Plaintiff because he had ongoing criminal proceedings. Its action is ‘well within an employer’s prerogative for running a business.’ [Citation.] More important, Securitas removed the suspension and allowed Plaintiff to return to work after the conclusion of his criminal proceedings.” (Id. at p. 19:8-12.)

In opposition, plaintiff appears to assert a new theory of liability. After plaintiff’s criminal proceeding had finished:

“although Plaintiff’s suspension was lifted, Defendants never informed Plaintiff of the lifted suspension and failed to offer him a new position for five months. A reasonable person left in county jail for four days by his employer and subsequently denied any position for five months would reasonably be compelled to quit.”

(Opposition, p. 15:16-20; PAMF 67-70.)

This theory is not supported by the allegations in the FAC, which alleges that:

“After the dismissal of Plaintiff’s charges, Defendant’s engaged in further retaliation by offering Plaintiff a position as an unarmed security guard at two-thirds his previous hourly rate, rather than reinstate Plaintiff in his prior position.”

(FAC, 34.) As noted above, a demotion or reduction in pay is not, by itself sufficient to support a constructive termination claim. (Turner, supra, at p. 1247.) If, as plaintiff now claims, defendant had refused to offer him work for a full five months after his reinstatement, that fact might support the claim. However, plaintiff does not allege that theory in the FAC and it is therefore improper in opposition to a motion for summary judgment. As set forth above, defendants have offered evidence that they confirmed plaintiff’s identity to the police shortly after his arrest and that the police nevertheless proceeded to file charges. They have also presented evidence that it is company policy to suspend any employee while a criminal action is pending. The facts, as alleged by plaintiff, show that defendants’ actions were either consistent with express company policy or do not, as a matter of law, constitute grounds for a constructive termination claim.

Accordingly, the Court GRANTS summary adjudication of the tenth cause of action.

Eleventh Cause of Action (Issues # 27-29) — Unfair Business Practices

Defendants move for summary adjudication of the eleventh cause of action on the grounds that plaintiff cannot establish that Securitas engaged in any unlawful, fraudulent, or unfair business practices. (See Notice of Motion, p. 4:9-17.)

Relevant Law

California Business and Professions Code section 17200 permits recovery for “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code § 17200.) To state a cause of action under Business and Professions Code section 17200, et seq., plaintiff must show: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) authorized remedy. (Bus. & Prof. Code § 17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.) “A plaintiff alleging unfair business practice under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) To support this cause of action, plaintiff must allege a statutory section that has been violated and describe with particularity any supporting violation. (See 5 Witkin, Cal. Procedure (5th ed. 2008), § 779, p. 196 [citing Khoury, 14 Cal.App.4th at p. 619].)

Discussion

As set forth in greater detail above, plaintiff has failed to raise a triable issue of fact as to any claim other than that of negligence. As a matter of law, he cannot prevail on a claim under section 17200.

Accordingly, the Court GRANTS summary adjudication of the eleventh cause of action.

Issues # 30-31 — Punitive Damages

Defendants move for summary adjudication of the issue of punitive damages on the grounds that plaintiff cannot present evidence of malice, fraud, or oppression and cannot demonstrate that Gail Smith, Miguel Cazares, Jorge Nunez, and Joel Hayes were officers, directors, or managing agents of Securitas. (See Notice of Motion, p. 4:18-22.)

Relevant Law

The standard of proof for recovery of punitive damages is “clear and convincing” evidence of malice, fraud, or oppression. (Civ. Code, § 3294(a).) Under Civil Code 3294(c),

[¶] (1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal. App. 3d 503, 510.) The inquiry is generally fact-specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’” (American Airlines v. Sheppard (2002) 96 Cal. App. 4th 1017, 1051.)

Discussion

Defendants argue that plaintiff’s claim for punitive damages fails as a matter of law because “there is no evidence, let alone clear and convincing evidence, that the Securitas Defendants acted with an intent to cause injury to Plaintiff, their conduct was despicable, or they acted willfully, maliciously, or with intent to vex, annoy, or injure.” (Motion, p. 20:16-19.)

As set forth above, defendants are correct. Plaintiff has managed to raise only a single triable issue in opposition to this motion: it is possible that defendant Securitas was negligent in failing to have someone available to answer the phone and confirm plaintiff’s employment on the night of his arrest. Without more, there is simply no ground for asserting that failing to answer the phone may support an award of punitive damages.

Accordingly, the Court GRANTS summary adjudication on the issue of punitive damages.