18-CIV-03497 LIUWEI WANG, ET AL. VS. VENISCO CORP., ET AL.

LIUWEI WANG VENISCO CORP.
J. GARY GWILLIAM DAVID S. WEBSTER

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS’ FRIST AMENDED COMPLAINT TENTATIVE RULING:

Defendants’ motion for summary judgment is DENIED for the reasons set forth below.

Duty

Defendants contend they had no duty to protect Plaintiffs from the criminal conduct of Daniel Oseguera, Defendants’ employee at the time of the subject incident. According to Defendants, “No [] special relationship exists . . . that can impose a duty on Defendants to prevent any harm that may befall the Plaintiffs in this type of situation, where a simple employee, while off the clock, goes on to commit a personally motivated criminal act.” MPA, p.13-14. This characterization of events is contrary to Plaintiffs’ allegations in the complaint that “Defendants gave access to their employee to a private home which said employee then used that information to plan his next crime.” Amended Complaint. Consistent with the Rest. Torts 2d § 317, California courts have expressly recognized a “master and servant” relationship as a type of special relationship that may support the existence of a duty to protect another from the conduct of third parties. See, e.g., Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013. Further, California courts have also recognized a special relationship between a business establishment and its customers. See, e.g., Morris v. De La Torre (2005) 36 Cal.4th 260, 271-272. There is no dispute that Oseguera was Defendants’ employee at the time of the alleged home invasion, or that Plaintiffs were Defendants’ customers. Accordingly, there was a special relationship between Plaintiffs and Defendants. This is especially true because Defendants were sending their employees into customer’s, including Plaintiffs, homes.

The question of whether a duty exists in this case depends on the well-known factors identified in Rowland v. Christian (1968) 69 Cal.2d 108: “In cases involving nonfeasance and a special relationship between a plaintiff and a defendant, courts have balanced the policy factors set forth in Rowland, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 to assist in their determination of the existence and scope of a defendant’s duty in a particular case.” Notably in their moving papers, Defendants have not evaluated the Rowland factors. Despite Defendants’ arguments to the contrary in their reply, application of those factors in the present case supports the imposition of a duty.

The first factor examines whether the harm to Plaintiffs was foreseeable:

“‘[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. [Citations.]’ [Citation.] Basically, ‘the reasonableness standard is a test which determines if, in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it.’ [Citation.]” (Juarez, supra, 81 Cal.App.4th at p. 402, 97 Cal.Rptr.2d 12.) Courts use a “sliding-scale balancing formula” under which “imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243, 30 Cal.Rptr.3d 145, 113 P.3d 1159.) Heightened foreseeability can be shown by evidence of prior similar criminal incidents or “other indications of a reasonably foreseeable risk of violent criminal assaults….” (Id. at p. 244, 30 Cal.Rptr.3d 145, 113 P.3d 1159.)

Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1131 [214 Cal.Rptr.3d 552, 566], as modified on denial of reh’g (Mar. 16, 2017). In this case, the parties do not dispute that Oseguera had been convicted of a violent felony, namely assault with a firearm causing great bodily injury under Cal. Penal Code §§ 245(a)(2) and 12022.7(a), as well as participation in a criminal street gang under Cal. Penal Code 186.22. UMF #13. Although neither party has provided facts relating to Oseguera’s prior conviction, the offense for which he was convicted is similar to the assault alleged here: that Oseguera and two accomplices burglarized Plaintiffs’ home and assaulted them with a firearm. UMF #21. Oseguera’s prior criminal conviction for assault with a firearm, in 2013, provides evidence of heightened foreseeability. This conclusion is especially true when a company sends a worker into someone’s home. It is foreseeable that they will gain information to which they would not have access except for their employment. Unlike a public place where the employer can put safeguards in place to minimize criminal activity, the only safeguard that an employer who sends an employee into a house to make sure that criminal or other wrongful activity does not occur is to check the background of the employee. The customer has no way to check out the background of the employee; only the employer has that ability.

Next, the court evaluates the burden to Defendants of requiring and implementing criminal background checks. The record indicates that independent criminal background checks cost Defendants approximately $60 per employee. Defendant Veny Pirochta, a co-owner of Defendant Venisco Corp., characterized the cost as “negligible.” AMF #35. This factor weighs in favor of imposition of a duty.

As in Doe v. United States Youth Soccer Assn., Inc., evaluation of the remaining Rowland factors also weighs in favor of imposing a duty. While that case was decided on a different set of facts involving a minor’s sexual abuse by a soccer coach, the conclusions reached with respect to the remaining Rowland factors are equally applicable here. As in Doe, “The connection between plaintiff’s harm and defendants’ failure to conduct a criminal background check was close. If defendants had conducted a criminal background check of [Defendant’s agent], his prior conviction for domestic violence would have been discovered and it would have been highly unlikely that he would have been hired.” In this case, the undisputed evidence indicates that Defendants would not have hired Oseguera if they had known about his criminal history. AMF #8. Further, imposition of a duty to conduct criminal background checks would assist in the goal of preventing harm caused by criminal activity. Finally, Defendants have provided no evidence with respect to the availability of insurance for harm caused by employees’ intentional criminal conduct. It is undisputed, however, that Defendants have insurance coverage here. Accordingly, if anything, this factor also weighs in favor of finding a duty.

As the court determined in Doe, the factor of moral blame weighs in favor of Defendants. There is no evidence to indicate Defendants were involved in the criminal activity in any way. Unlike the defendant in Doe, Defendants here did not require an applicant to authorize verification of information relating to prior criminal convictions. In any case, however, there is no moral blame attributable to Defendants. Nonetheless, as set forth above, consideration of each of the Rowland factors supports imposition of a duty in this case.

Defendants’ reliance on Wise v. Superior Court (1990) 222 Cal.App.3d 1008, Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373 and Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, is unpersuasive.

In Wise, the court determined the plaintiffs could not establish a special relationship supporting the existence of a duty of the wife of a sniper because there were no facts alleged indicating that the wife had the ability to control her husband’s actions. The court noted that “Despite decedent’s bizarre behavior, his only violent threat was directed at a neighborhood cat which had killed one of his rabbits. Even if we assume, for the sake of argument, that petitioner was aware of decedent’s potential for violence, plaintiffs have not alleged any facts which suggest petitioner knew or could have known that decedent would engage in the type of attack which occurred here . Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1014. In contrast to the husband and wife relationship at issue in Wise, California courts have determined that a special relationship exists between master and servant, as well as between business establishments and their customers. Further, unlike in Wise, the alleged offender in this case had been recently convicted of assault with a firearm, and Plaintiffs’ harm is alleged to have resulted from Oseguera’s assault with a firearm. As a result, Wise is distinguishable.

Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207 is also distinguishable. In that case, the plaintiff alleged the defendant’s employee, a teacher at a hairstyling college, had sexually molested plaintiff, a juvenile male whose mother was a student at the college, and that defendant knew, or should have known, that the employee had previously been convicted of sexually molesting juvenile males. The court rejected the imposition of liability, reasoning that “nothing in [the employee’s] history would have indicated to defendant that [the employee] posed a threat of harm to minors he might encounter in the course of his work.” Id. at 1214-15. Notably, Justin Granato, Defendants’ Vice President of Production, stated that he would not have hired Oseguera if he had known of the prior convictions. AMF #8. Further, unlike the present case, there was no evidence in Federico that the employment provided special access to the victim in his home or otherwise.

The decision in Flores is even less persuasive. In that case, the plaintiff argued for imposition of a duty, in part, due to the fact that the alleged offender had a record of juvenile delinquency. The court summarily rejected that claim: “Most easily disposed of is Flores’ assertion that Autozone had some duty to investigate whether its prospective employees might have a prior juvenile delinquency record. The confidentiality of such records is protected by law. (Welf. & Inst.Code, §§ 827–828.) Recognizing a duty on the part of an employer to uncover those records is simply inconsistent with that confidentiality policy, so we must decline to do so.” Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 384. In contrast, in the present case, the court has been directed to no authority protecting the confidentiality of Oseguera’s criminal record. Further, the assault in Flores occurred at a store rather than a home, another critical distinction.

Proximate Cause

Defendants contend, next, that “there is no evidence that Oseguera was [a] poor employee or had violent tendencies towards customers or co-employees, and it is legally untenable to claim that Defendants’ hiring of the assailant employee could be the proximate cause of Plaintiffs’ injuries.” MPA, p.17. Here, Defendants rely on Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1343. In that case, an off-duty police officer who had been drinking shot and killed his fiance with his own gun during a domestic argument. The plaintiffs filed a wrongful death suit against the city, alleging that the city negligently hired and supervised the officer and negligently entrusted him with the right to carry a concealable firearm. The officer was permitted, but not required, to carry a concealable firearm while off duty. Id. at 1336. The court found that the city did not have a duty to the employee’s family members and, further, that the city’s hiring of the employee was not a proximate cause of the harm. In doing so, the court noted that the employee had no history of violence: “The fact that Mendoza may have shown signs of abusing alcohol is insufficient to establish that the City should have foreseen that he would on a drunken spree shoot Clementina. Mendoza had no history of past violence or excessive use of force. Mendoza’s unforeseeable private act broke the chain of proximate cause connecting the City’s negligence to Clementina’s death.” Id. at 1342. The facts of Mendoza have no analogy to the present case.

The question of causation is ordinarily one for the jury. Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1214. As noted above, there is at least evidence in the record that Oseguera’s conduct was foreseeable. In this case, the facts and the reasonable inference drawn therefrom show that Oseguera “cased” the home while performing the work, gained information about the occupants (Plaintiffs), the valuable that they owned and where those valuable were located (in the safe). Accordingly, Defendants’ failure to investigate and easily find information which would demonstrate Oseguera was unfit to enter into customers’ homes could be found to be a substantial factor in causing Plaintiffs’ injuries. While the factfinder may ultimately find Defendants’ hiring of Plaintiff was not the proximate cause of Plaintiffs’ injuries, that question is not subject to resolution by the court based on the facts presented here, and Defendants have provided no persuasive argument or authority to the contrary.

Intervening and Superseding Cause

Defendants also assert that “the acts of assailant employee Oseguera in this case were an intervening and superseding act that breaks the causation chain.” MPA, p.18. Defendants have provided no pertinent authority in support of this claim. Ultimately, however, this argument also rests on foreseeability. See, e.g., Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210 (“Where an injury was brought about by a later cause of independent origin … the question of proximate cause revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable.”) As set forth in the analysis above, there is sufficient evidence of foreseeability to support the existence of a duty, and the question of proximate cause is subject to determination by the factfinder.

Negligent Hiring

Finally, Defendants contend that, because they did not receive information regarding Oseguera’s prior conviction from an independent criminal background check, “there was no reason to doubt that Oseguera was fit and competent and could do the job he was hired for, and, therefore, a claim for negligent hiring must fail as a matter of law.” MPA, p.20. Plaintiffs assert, however, that Defendants should have known about the risks of hiring Osegura. “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139. Defendants’ argument does not respond to the claim that Defendants should have known about the particular risk and harm alleged to have been caused by Oseguera’s hiring.

Based on the foregoing, Defendants have failed to meet their burden of demonstrating that an essential element of Plaintiffs’ cause of action cannot be established.

Plaintiffs’ request for judicial notice is GRANTED. Evid. Code § 452(c), (d). Judicial notice is taken of the documents’ filing/recording, contents, and legal effect, but not the truth of allegations therein.

It appears from the reply that Defendants seek to strike the testimony of Jay Finkelman. However, Defendant put this argument in their reply rather than in a separate motion to strike as required by California Rule of Court Rules 3.1352 and 2.1354. Therefore, the Court does not rule on the objection. The Court, however, agrees that it is the providence of the Court, not an expert to decide issues of law. Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1181 (referring to the “knowledgeable gentlemen in a robe whose exclusive province is to instruct the jury on the law.”)1