2016-00190958-CU-PO

Dana Berry vs. Roman Catholic Bishop of Sacramento

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Roman Catholic

Filed By: Greene Jr., Stephen J.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendants and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants Roman Catholic Bishop of Sacramento (“Bishop”), Pastor of Our Lady of the Assumption, Carmichael (“OLA”), and Pastor of Sacred Heart Parish Sacramento (“Sacred Heart”) (collectively “Defendants”) Motion for Summary Judgment, or in the alternative, Summary Judgment is ruled upon as follows.

Overview

Plaintiff Dana Berry (“Berry”) alleges that he was battered and assaulted by various individuals while he attempted to videotape his daughter’s basketball games. Berry alleges that league rules entitled him to videotape the games for instructional

purposes. He allegedly served as assistant coach for his daughter’s team, the St. John Evangelist team (“St. John”).

Berry alleges the Parochial Athletic League (“PAL”) is supervised by the Catholic School Department of the Roman Catholic Diocese of Sacramento (“Diocese”), which is owned, operated and organized by the Bishop. He alleges that co-defendant Mike Daily (“Daily”) is an employee or agent of Sacred Heart and head coach of the girls’ basketball team, and was acting in the course and scope of his employment/agency. (FAC, ¶ 12.) He alleges that co-defendant Kelly Brothers (“Brothers”) is an employee or agent of OLA and head coach of the girls’ basketball team, and was acting in the course and scope of his employment/agency. (FAC, ¶ 17.)

One such incident occurred on 2/27/2014 as St. Ignatius. Berry alleges that during the game he was confronted by Daily and a number of parents from OLA, regarding the filming of the game. He alleges that these individuals “surrounded Plaintiff yelled at him, gesticulated towards him, and waved their hands within inches of his face and person. Plaintiff reasonably feared that he would soon be physically attacked by them. These individual defendants in fact made contact with Plaintiff by pushing, shoving, poking, grabbing/striking him. (First Amended Complaint (“FAC”), ¶ 26.) Thereafter, Berry was suspended from attending one St. John game and was barred from attending the PAL championship tournament held at Jesuit High School.

A second incident occurred on 12/13/2014 at Christian Brothers. Berry alleges that he was video-recording his daughter’s game when Daily confronted him and screamed at him. (FAC, ¶ 33.)

Another incident occurred on 2/23/2015 at Holy Family. Berry alleges that he was planning on video-taping a basketball game there. He was having a conversation with Taryn Wright (“Wright”), OLA’s Athletic Director when Brothers approached Berry and said Berry was “retarded.” Wright replied that she knew that Plaintiff was “retarded.” Later that day, Brothers approached Berry from behind and then jabbed his finger four times into Berry’s right shoulder, told Berry to stop video-recording, and then ran away.

Berry asserts three negligence causes of action against Defendants: (1) negligence – direct liability against the Bishop, (2) negligence – direct and vicarious liability against Sacred Heart for Daily’s acts, and (3) negligence – direct and vicarious liability against OLA for Brothers’ acts.

Defendants move for summary adjudication of each cause of action on the grounds that Plaintiff cannot establish that: (1) Defendants had a special relationship with Berry, such that they had no duty to protect him from being harmed by third parties, (2) the harmful acts by third parties were foreseeable, and (3) there is any causal connection between some omission by Defendants and the harm being alleged in the complaint.

The Diocese: Special Relationship

Under general common law rules, one person owes no duty to control the conduct of another or to warn those endangered by that conduct. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.) However, California courts have recognized that “special relationships” may create special duties, including the duty to protect against the harmful acts of third persons. (See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425, 435; Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199.)

The Diocese argues that it had no special relationship with Berry. Here, it is undisputed that the only connection the Diocese has to this matter is that it organizes the PAL. (UMF 16, 17.) The PAL is part of the educational mission of the Catholic Schools Department of the Diocese of Sacramento. (UMF 18.) The operations of the PAL are overseen by the Diocese’s Catholic School Department, but the two individuals that manage the league are not employees of the Diocese. (UMF 20.) It is also undisputed that none of the incidents occurred on Diocese property. (UMF 38, 43, 49.)

The Court concludes that the Diocese has satisfied its initial burden to show that it had no special relationship with Berry. The burden now shifts to Berry to demonstrate a triable issue of material fact.

Berry advances in opposition that a special relationship between himself and the Diocese is akin to that of a business visitor for the Diocese because he attends PAL games at Diocese-associated schools upon the “express and/or implied invitation of the Diocese, and he does so for a business purpose: to see his daughter participate in and experience the Diocese’s brand of ‘Christian and human development’ through athletic competition for its boys and girls that is administered through the PAL, which is an ‘integral part of the educational mission of the Catholic schools of Diocese of Sacramento.’” (Opposition, 9:13-10:4.) Berry recognizes that the PAL events do not appear to be money-making ventures, but “the strong inference in Berry’s favor is that parents like him enroll their children in, and pay the tuition for, private Diocese-associated schools because of its unique Christian brand that is reinforced, in part, through organized athletic competition by the Diocese’s PAL.” (Opposition, 10:5-9.) Berry further insists that the fact that the incidents occurred on non-Diocese property is of no moment because Diocese exerted sufficient control over the areas where the incidents took place. Berry relies on Morris v. De La Torre (2005) 36 Cal.4th 260 to support his argument. His reliance is misplaced. In Morris, plaintiff was assaulted while he waited for his friends in restaurant parking lot. The California Supreme Court recognized established law that “a proprietor’s special-relationship-based duty to customers or invitees extends beyond the structure of a premises to areas within the proprietor’s control.” (Id. at 274.) The court found sufficient control by the business owner because: “(1) apparently customers and invitees regularly used the parking lot when patronizing defendant’s restaurant; (2) defendant was aware of this use, and posted in its windows advertising that could be read from the parking lot; (3) the area

of the parking lot where the altercation and initial stabbing occurred was directly in front of the restaurant’s windows; (4) defendant’s lease authorized the nonexclusive use of the parking area for customers’ and invitees’ cars; and (5) a reasonable inference can be drawn that defendant realized a significant commercial benefit from his customers’ use of the parking lot. Indeed, at the time of the attack (1:00 a.m.), with

no other shopping center enterprise then open, the lot as a practical matter was subject to defendant’s sole use and control.” (Id.)

The Court concludes that Berry fails to satisfy his burden to show a triable issue of material fact that a special relationship existed between himself and the Diocese. Berry points to the PAL guidelines to show control. These guidelines set the schedules, outline administrative roles and responsibilities, and sets forth general rules and well as specific rule for some games. At most, the evidence shows that the Diocese controlled the PAL and the PAL set certain guidelines for the league. Notably, there is no evidence that the Diocese leased any of the properties where the incidents occurred. Nor is there evidence that the Diocese had any level of control of the properties such that the special-relationship doctrine applies.

Accordingly, the Diocese’s motion for summary adjudication is GRANTED.

Vicarious Liability against Sacred Heart and OLA

The Court notes that Berry does not assert that there is a special relationship between himself and Sacred Heart and OLA. (Opposition, 14:1-2.) Thus, the Court will not address Defendants’ argument regarding special relationship.

Here, it is undisputed that both Daily and Brothers were volunteer coaches. (UMF 13, 45.) Defendants do not take issue with whether Daily and Brothers were acting within the scope of employment at the time of the incidents. Rather, they argue that vicarious liability cannot be imposed based on Daily and Brothers’ assaults because the acts cannot reasonably be foreseen as an outgrowth of Daily’s and Brother’s duties. The Court notes that the cases cited by Defendants concerns intentional torts, such as sexual battery. In this case, the causes of action asserted against Defendants are for negligence. Although titled “negligence,” the causes of action actually arise from Daily and Brothers offensive touching (i.e. pushing, shoving, poking, grabbing, striking or jabbing) of Berry. These acts cannot be considered negligent, but instead intentional.

Vicarious liability may only be imposed against an employer for the intentional tort of

an employee if: (1) the act performed was either required or instant to the employee’s duties, or (2) the employee’s misconduct could be reasonably foreseen as an

outgrowth of the employee’s duties. (Motion, 10:1-3, citing Mary M. v. City of Los Angeles (1999) 54 Cal. 3d 202, 209 and Rita M. v. Roman Catholic Archbishop (1986)

187 Cal.App.3d 1453, 1461.) “[T]he employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Lisa

M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) “Respondeat superior liability should apply only to the types of injuries that ‘as a

practical matter are sure to occur in the conduct of the employer’s enterprise.’ The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought. (Id. at 299.)

Defendants contend that Berry cannot satisfy either requirement because:

To satisfy this first element, plaintiff would have to demonstrate that somehow Sacred Heart and OLA gave their coaches advanced instructions or permission to commit acts of assault and battery against plaintiff. Such a proposition is patently ridiculous, not only on grounds of common sense, but also given the nature of the PAL – an athletic league organized to foster Christian and human development, “recognizing the dignity of each student in Christ’s image,” and in which coaches and players pray together before games. UMF 18, 19.

Second, plaintiff would have to show that an assault on a PAL parent by Daily or Brothers was reasonably foreseeable as an outgrowth of their coaching duties. This equally- ridiculous proposition also fails. As discussed both above and below, the undisputed material facts of this matter demonstrate that there is no evidence of any other physical confrontations at PAL games, not only as it relates to Daily and Brothers, but also generally, as it relates to all those attending such games.

(Motion, 13:25-14:9.)

The Court concludes that Defendants satisfy their initial burden to demonstrate that no triable issue of material fact exists. The burden now shifts to Plaintiff to show a triable issue of material fact.

Berry’s argues that the incidents were “work-related disputes between coaches” which were a “natural, foreseeable outgrowth of the PAL coaching enterprise.” (Opposition, 15:12-19.)

Nonsexual assaults that were not committed to further the employer’s interests have been considered outgrowths of employment if they originated in a work-related dispute. (Lisa M., supra, 12 Cal. 4th at 300.) For example, an employer may be vicariously liable for an employee hitting a customer with a metal pipe which stemmed from his interaction with customer because it “was predictable risk of retail employment.” (Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 380, 381 [“Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to ‘physical act[s] of aggression.’. . . The workplace stresses and strains which might cause an employee to erupt in anger are not dependent upon whether the person who happens to be standing in the line of fire is a coworker or a retail customer.”].) An employer may also be vicariously liable for its truck driver’s assault on another motorist following a collision. (Fields v. Sanders

(1947) 29 Cal.2d 834, 836.)

However, “vicarious liability [has been] deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute (e.g., Monty v. Orlandi (1959) 169 Cal. App. 2d 620, 624 [bar owner not vicariously liable where on-duty bartender assaulted plaintiff in the course of a personal dispute with his common law wife]), or is the result of a personal compulsion (e.g., Thorn v. City of Glendale (1994) 28 Cal. App. 4th 1379, 1383 [city not vicariously liable where fire marshal set business premises on fire during an inspection].)” (Lisa M., supra, 12 Cal. 4th at 300-301.)

In February 2014, Berry was an assistant coach for his daughter’s basketball team. (Berry’s Additional Material Facts (“AMF”), 1.) During the February 27, 2014 incident, there was a dispute between Berry and a few parents whom Berry believed were intentionally blocking his video camera. The dispute escalated and others became involved, demanding that he shut off the camera and stop filming. Mike Daily eventually approached Berry, punched him and said, “You’re out of here. You got to get out of here.” (AMF 4, Declaration of Manolo H. Olaso (“Olaso Decl.”), Ex. C, 81:16 -18.) Berry was suspended as coach on February 28th as a result of the February 27th incident. (Olaso Decl., Ex. C, 139:2-10.) During the February 23, 2015 incident, Berry had his camera rolling when Brothers came up from behind and hit him on the upper-right shoulder, several times. He told Berry “why don’t you turn off your camera or stop turning — stop filming, or something of that nature.” (AMF 8, Olaso Decl., Ex. C, 435:1-8.) The PAL Guidelines anticipated the possibility of “un-sportsman like or detrimental behavior,” and requires the Athletic Director of each participating school to meet with parents with “special emphasis [to] be placed on good sportsmanship, lending support to school coaches, respecting your opponent (Honoring the Game – Positive Coaching Alliance), and respecting the work of the officials in assisting with the administration of various athletic contests.” (Olaso Decl., Ex. A, p. 6.) The PAL Guidelines advise the Site Director to “[c]irculate during games. Watch the crowd and make sure no one is heckling the officials or the players. If any fan, coach or player gets out of hand, warn them and possibly remove them from the game or from the site if necessary. (Olaso Decl., Ex. A, p. 14 [emphasis added].) The PAL Guidelines further note that “[a]ny player, coach or fan who swears at an opposing player, official or coach or who causes a fight will be removed from the game.” (Olaso Decl., Ex. A, p. 14 [emphasis added].)

Defendants counter that at the time of the February 2014 and February 2015 incidents, Berry was not acting as a coach. Whether Berry was also acting as a coach is of no moment. (See e.g. Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 380, 381.) The question is whether Daily and Brothers were acting in the scope of their employment at the time of the incidents. As explained previously Defendants do not take issue with whether Daily and Brothers were acting within the scope of employment at the time of the incidents.

The Court concludes that Berry has demonstrated a triable issue of material fact as to

whether the incidents were “work-related” and “un-sportsman like or detrimental behavior,” including fights, is a predictable risk of participating as a coach. Moreover, it is undisputed that Berry had never spoken with Daily or Brothers prior to the incidents. (UMF 41, 52.) Therefore, the incidents do not appear to have been a personal dispute.

The motion for summary adjudication is DENIED.

Direct Liability against Sacred Heart and OLA

Berry alleges that Sacred Heart and OLA owed him a duty to prevent him from bodily harm while he attended PAL games, and to refrain from conduct that could foreseeably lead to him suffering bodily harm. Berry alleges that Sacred Heart and OLA breached this duty by failing to exercise ordinary, reasonable care to prevent him from suffering bodily harm. He alleges that Daily is an employee or agent of Sacred Heart, and was acting in the course and scope of his employment/agency and that Brothers is an employee or agent of OLA, and was acting in the course and scope of his employment/agency. (FAC, ¶¶ 12, 17.) He further alleges that Daily and Brothers “while acting within the course and scope of his employment/agency” came into direct contact with Berry and caused bodily harm. (FAC, ¶¶ 42, 45.)

As discussed above, under general common law rules, one person owes no duty to control the conduct of another or to warn those endangered by that conduct. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.) However, California courts have recognized that “special relationships” may create special duties, including the duty to protect against the harmful acts of third persons. (See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425, 435; Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199.)

Berry concedes that he has no special relationship with Sacred Heart and OLA. (Opposition, 14:1-2.) Berry seeks to impose direct liability because Daily and Brothers were allegedly ostensible agents of Sacred Heart and OLA. Berry relies on Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403 to support his argument that “agents can make a principal directly liable.” (Opposition, 14:2-4.) In Myers, plaintiff sued her employer for sexual harassment and common law claims of sexual battery, false imprisonment, and intentional infliction of emotional distress. The court observed that two doctrines may be implicated against an employer: (1) vicarious liability, and

(2) direct liability for the acts of its agents. (Id. at 1427.) The court also recognized that “ ‘Vicarious liability based on the tort doctrine of respondeat superior and direct liability based on the theory of actual or ostensible agency are different liability theories which cases do not always distinguish between. [Citation.]’ ” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1427.) The court, however, only analyzed vicarious liability because the plaintiff did not clearly present a theory of direct liability based on agency.

Here, Defendants do not argue that no agency relationship existed with Daily and Brothers. Indeed, Defendants do not take issue with whether Daily and Brothers were agents when the incidents occurred. Defendants’ main argument is that no direct liability can be imposed because the acts were not foreseeable.

Defendants contend that foreseeability is measured by what the defendant actually knew, not by constructive knowledge or information that the defendant arguably should have known, but did not. Defendants rely on Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141 and Romero v. Superior Court (2001) 89 Cal.App.4th 1068 to support their position. These cases are distinguishable because the plaintiff did not attempt to hold an employer directly liable for the acts of an agent. Additionally, the “actual knowledge” test appears to be limited to the facts of Margaret W. and Romero. Specifically, a minor child who is the victim of sexual assault seeking to hold liable for negligence and/or negligent supervision the homeowner of where the assault took place or under whom the child was supervised.

Defendants next cites to Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138 for the proposition that “the California Supreme Court has affirmed that the focus needs to be on the foreseeability of the particular criminal act itself, and not the general nature of the harm that resulted.” (Motion, 9:8-10.) Wiener is inapposite as it did not involve an employer being held directly liable for the acts of an agent, and appeared to focus on the balancing test for landowner liability that was announced in Ann M. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666.

Having failed to proffer legal authority analogous to the facts herein, Defendants fail to satisfy their initial burden. The motion for summary adjudication is DENIED.

Causation

With regards to causation, Defendants tender that “the same facts that preclude any conclusion that the incidents described by plaintiff were foreseeable also serve to establish that there can be no causal connection between some omission by the moving defendants and the harm alleged by plaintiff.” (Motion, 16:21-23.) The Court finds that Berry has demonstrated a triable issue of material fact that the incidents were foreseeable.

Additionally, Defendants fail to satisfy their initial burden to show an absence of evidence to support Berry’s claim of causation. To satisfy its initial burden, a defendant is “require[d] . . . to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “The defendant is not required conclusively to negate an element of the plaintiff’s cause of action. The defendant need only show the plaintiff cannot establish at least one element of the cause of action, such as by showing the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433,

1438.) “However,

‘[s]ummary judgment law in this state…continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence….The defendant may,

but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.'” (Id. (citation omitted).) The required showing can also be made by presenting evidence that, in response to discovery, the plaintiff has affirmatively admitted that he or she “does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar at 854-855.) Here, Defendants fail to proffer Berry’s discovery responses or deposition testimony in which he attest that he has no evidence of causation. Nor have Defendants shown that Berry “does not possess, and cannot reasonably obtain, needed evidence.”

The motion for summary adjudication is DENIED.

Having failed to obtain summary adjudication of all causes of action, the motion for summary judgment is DENIED.

This minute order is effective immediately. Berry shall prepare a formal order pursuant to CRC Rule 3.1312 and CCP 437c(g).