Case Number: BC674128 Hearing Date: September 09, 2019 Dept: 4A

Motion for Summary Judgment, or in the alternative, Summary Adjudication

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On August 29, 2017, Plaintiff Daniel C. Laget (“Plaintiff”) filed a complaint against Defendants Square G, Inc. d.b.a. Chatterbox and Adam Doe alleging assault, battery, intentional infliction of emotional distress, negligence, premises liability, and negligent hiring, training, and/or retention in relation to an altercation that occurred on September 1, 2015.

On November 15, 2018, Defendant Square G, Inc. d.b.a. Chatterbox filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

On January 24, 2019, the Court continued the hearing on the instant motion to July 17, 2019.

On May 16, 2019, the Court continued the hearing on the instant motion to September 9, 2019.

Trial is set for January 27, 2020.

PARTY’S REQUEST

Defendant Square G, Inc. d.b.a. Chatterbox (“Moving Defendant”) requests that the Court grant summary judgment, or in the alternative, summary adjudication against Plaintiff on the grounds that it did not owe a duty of care to Plaintiff, did not breach a duty of care to Plaintiff, and did not cause Plaintiff’s injuries.

LEGAL STANDARD

The purpose of a motion for 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.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Moving Defendant’s undisputed material facts establish the following. On September 1, 2015, two unidentified men battered Plaintiff outside Moving Defendant’s bar and comedy club. (UMF Nos. 1-2, p. 2:4-2:14.) Moving Defendant’s security guard, Adam Mankins, was working within the course and scope of his employment at the time of the incident. (UMF No. 3-4, p. 2:14-2:23.) No other agents, servants, representatives, alter egos, or employees of Moving Defendant were involved in the subject incident on the night of the altercation. (UMF No. 5, pp. 2:24-3:2.)

Prior to the incident, Plaintiff went outside and discovered that a fight had developed between two females and that Mr. Mankins was talking to one of those females. (UMF Nos. 9-10, p. 3:12-3:21.) The other female walked towards Plaintiff, who asked if if the woman was okay and she walked away after saying she was okay. (UMF Nos, 14-15, p. 4:6-4:13.) All of a sudden, with no forewarning whatsoever, Plaintiff was struck from behind and beaten up by two males Plaintiff had never seen before. (UMF Nos 17-20, pp. 4:16-5:1.) Mr. Mankins used pepper spray on the two males who were battering Plaintiff. (UMF No. 22, p. 5:5-5:8.) Plaintiff never tried to break up the fight between the females, tried to restrain the females, and was never asked to assist in breaking up the fight between the females. (UMF No. 23, p. 5:9-5:13.) Nor was Plaintiff warned to not speak to any particular female. (UMF No. 24, p. 5:13-5:17.) Plaintiff did not have any verbal confrontation with anyone inside Moving Defendant’s premises on the night of the incident. (UMF No. 25, p. 5:17-5:20.)

Assault, Battery, and Intentional Infliction of Emotional Distress

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. [Citation.] The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

The elements of a cause of action for intentional infliction of emotional distress are: (1) the defendant engaged in “extreme and outrageous” conduct, (2) the defendant intended to induce emotional distress, or otherwise recklessly disregarded for the possibility it would result, (3) the plaintiff actually suffered emotional distress, and (4) the plaintiff’s emotional distress was actually and proximately caused by the defendant’s conduct. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

“Under the doctrine of respondeat superior, ‘an employer is vicariously liable for the torts of its employees committed within the scope of the employment.’” (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521 [citation omitted]). But an employer is not strictly liable for an employee’s intentional torts. For an employer to be liable for an intentional tort of an employee, the employee’s act must have a causal nexus to the employee’s work. (Id. [citation omitted]). Such an inquiry is grounded on an examination of the foreseeability of the alleged misconduct. “The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.” (Id. at 522 [citation omitted]).

The Court finds Moving Defendant has met its burden in showing there is no triable issue of material fact with respect to its liability for assault, battery or intentional infliction of emotional distress. Moving Defendant’s undisputed material facts show that the individuals who attacked Plaintiff were not agents, servants, representatives, alter egos, or employees of Moving Defendant. The only employee of Moving Defendant’s present during the alteration was Mr. Mankins. Mr. Mankins was not one of the two unknown assailants who attacked Plaintiff. Mr. Mankins instead assisted Plaintiff in subduing the two attacking parties. There is no factual allegation or reasonable inference that can be drawn indicating that Mr. Mankins acted with an intent to cause harmful or offensive contact with Plaintiff or intend to induce emotional distress on Plaintiff. Thus, summary judgment is properly granted against Plaintiff and in Moving Defendant’s favor as to Plaintiff’s assault, battery, and intentional infliction of emotional distress causes of action.

Premises Liability

The elements of a premises liability claim based on negligence are: (1) defendant owed a duty of care to plaintiff; (2) defendant breached that duty; and (3) the breach proximately caused injury and damages. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Ibid.) “A proprietor of premises is not the insurer of the safety of persons on those premises. His duty to control the acts of third persons is a duty of reasonable care to protect against known or reasonably foreseeable risks. He is not required to take precautions against attacks by third persons which he has no reason to anticipate. [Citation.]” (7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905.) “[T]he predicate of any duty to prevent criminal conduct is its foreseeability. Property owners have no duty to prevent unexpected and random crimes. . . . ‘[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.’ [Citation.]” (Nicole M. v. Sears, Roebuck & Co. (1999) 76 Cal.App.4th 1238, 1247.)

Moving Defendant’s undisputed material facts demonstrate that the battering of Plaintiff could not have been reasonably anticipated. Plaintiff did not get involved in the altercation between the two females in any way other than to ask if one of the females was alright. No reasonable inference can be drawn from Plaintiff’s limited contact with one of the females tending to show that the battering of Plaintiff was foreseeable. As such, summary judgment is properly granted against Plaintiff and in Moving Defendant’s favor as to Plaintiff’s premises liability cause of action.

Negligent Hiring, Training, and/or Retention

The Court in Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1158 affirmed that “. . . an employer’s admission of vicarious liability for its employee’s negligence makes claims of negligent entrustment, hiring, or retention irrelevant.” The California Supreme Court reasoned that where “an employer offers to admit vicarious liability for its employee’s negligent driving, then claims against the employer based on theories of negligent entrustment, hiring, or retention become superfluous. To allow such claims in that situation would subject the employer to a share of fault in addition to the share of fault assigned to the employee, for which the employer has already accepted liability. The assignment to the employer a share of fault greater than that assigned to the employee whose negligent driving was a cause of the accident would be an inequitable apportionment of loss.” (Id. at p. 1160 (emphasis in original).)

Moving Defendant argues that Plaintiff’s negligent hiring, training and retention causes of action must fail because Moving Defendant has admitted it is vicariously liable for the actions of its employee, Mr. Mankins. (Motion, pp. 16:17-16:18.)

The rationale in Diaz is directly applicable to Plaintiff’s negligent hiring and retention causes of action. The Court also finds the rational in Diaz applies to Plaintiff’s negligent training cause of action. Allowing these causes of action to go forth would subject Moving Defendant to a share of fault in addition to the share of fault assigned to the Mr. Mankins, for which the Moving Defendant has already accepted liability. Therefore, summary judgment is properly granted in Moving Defendant’s favor and against Plaintiff as to Plaintiff’s negligent hiring, training, and retention causes of action.

CONCLUSION

The motion for summary judgment is GRANTED.

Moving Defendant is ordered to give notice of this ruling.