Case Number: EC066615 Hearing Date: December 28, 2018 Dept: A

Kibodeaux v safe home security

Motion FOR summary judgment OR SUMMARY ADJUDICATION

Calendar:

10

Case No.:

EC066615

Hearing Date:

12/28/18

Action Filed:

5/16/17

Trial Date:

1/28/19

MP:

Defendant Safe Home Security, Inc.

RP:

Plaintiff Christopher Kibodeaux

ALLEGATIONS:

In this action, Plaintiff Christopher Kibodeaux (“Plaintiff”) alleges that on June 11, 2013, he entered into a 36-month alarm home monitoring agreement with Defendant Safe Home Security Inc. dba Security One Alarm Systems for real property located at 1331 N. Hudson Avenue in Pasadena. Plaintiff alleges he paid $29.99 per month until November 2016 for the services, and tendered a cancellation letter on November 11, 2016. He alleges that he received a letter stating he was under contract until April 4, 2017. Plaintiff asked for written verification of his commitment and alleges that he was sent a contract with his counterfeit signature.

The complaint, filed May 16, 2017, alleges causes of action for: (1) fraud and deceit; (2) employer liability for punitive damages (Civ. Code, §3294(b); (3) negligent training and/or supervision; and (4) conspiracy.

RELIEF REQUESTED:

Defendant Safe Home Security, Inc. (“Safe Home”) moves for summary judgment on the complaint. In the alternative, he moves for summary adjudication on the following issues:

– Issue 1: There is no triable issue of material fact as to the 1st cause of action because there is no merit to the cause of action and Plaintiff cannot establish one or more necessary elements of the claim.

– Issue 2: There is no triable issue of material fact as to the 2nd cause of action because there is no merit to the cause of action and Plaintiff cannot establish one or more necessary elements of the claim. Further, there is a lack of pleading/evidence to support the claim in light of the fact that Plaintiff admits there is no employer/employee relationship between Sales Representative X and Safe Home.

– Issue 3: There is no triable issue of material fact as to the 3rd cause of action because there is no merit to the cause of action and Plaintiff cannot establish one or more necessary elements of the claim. Further, there is a lack of pleading/evidence to support the claim in light of the fact that Plaintiff admits there is no employer/employee relationship between Sales Representative X and Safe Home.

– Issue 4: There is no triable issue of material fact as to the 4th cause of action because there is no merit to the cause of action, nor the 3 predecessor causes of action on which this claim is based, and Plaintiff cannot establish one or more necessary elements of the claim.

DISUSSION:

Fraud and Deceit (1st cause of action)

The requisite elements of a fraud cause of action are: (1) a representation, usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation; and (5) damage resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.)

In support of its initial burden, Safe Home provides evidence that on June 11, 2013, Plaintiff entered into a 36-month Alarm Monitoring Agreement for security services for 1331 N. Hudson Avenue, Pasadena (“2013 Hudson Agreement”). (Fact 5.) Plaintiff paid the Activation Fee for the 2013 Hudson Agreement via check. (Fact 6.) Thereafter, on August 4, 2014, Plaintiff entered into a 36-month Alarm Monitoring Agreement for security services for 841 W. Figueroa Drive, Altadena (“2014 Figueroa Agreement”). (Fact 9.) Plaintiff paid the Activation Fee for the 2014 Figueroa Agreement via check. (Fact 10.)

Safe Home argues that Plaintiff cannot establish the elements of misrepresentation, Safe Home’s knowledge that Plaintiff’s signature was a forgery, and intent against Safe Home. Namely, Safe Home argues that while it does not dispute that the signatures of the 2014 Figueroa Agreement and the 2013 Hudson Agreement are different, the signature on the Activation Fee checks for these agreements are identical. (See David G. Roman Decl., Exs. B and D [Checks].)

However, this evidence alone is not sufficient to satisfy Safe Home’s burden in summary judgment or summary adjudication. Safe Home has not provided the declaration of an expert in handwriting, Plaintiff himself has not authenticated the writing as his own, nor has a person familiar with Plaintiff’s handwriting and signature authenticated the writing. (See Evid. Code, §§1415-1418.) The crux of this fraud cause of action is whether or not Plaintiff’s signature on the 2014 Figueroa Agreement was forged. Safe Home has not upheld its burden with regard to this matter and even admits that Plaintiff’s signatures on the 2013 Hudson Agreement and 2014 Figueroa Agreement are different. While the trier of fact may make a determination of the genuineness of a signature, this motion is not a trial proceeding.

Even if Safe Home was able to uphold its initial burden, Plaintiff is able to raise triable issues of material fact. First, Plaintiff states in his own declaration that his signature in the 2014 Figueroa Agreement was forged. (Kibodeaux Decl., ¶¶4, 7.) He states that the only agreements he signed were: (1) the 2013 Hudson Agreement and (2) a 36-month Alarm Monitoring Agreement for security services for 841 W. Figueroa Drive, Altadena on June 11, 2013 (“2013 Figueroa Agreement”). (Pl.’s Fact 5; Pl.’s Decl., Ex. A.) In other words, Plaintiff states that he signed a 2013 Hudson Agreement and 2013 Figueroa Agreement, but not a 2014 Figueroa Agreement. Plaintiff states that he was asked to write and send a check on August 4, 2014 for an unexplained reason in the amount of $29.99, but that the check was not cashed. (Pl.’s Decl., ¶4.) Thus, while Plaintiff does not dispute that he signed a check in 2014, he states he was not told the reason why he was asked to sign and send over a check and that he did not sign another agreement in 2014 for the Figueroa property. This raises a triable issue of material fact regarding whether he signed the 2014 Figueroa Agreement and why he signed (or was asked to sign) a check in 2014.

Second, Plaintiff provides the declaration of James A. Black, Plaintiff’s retained expert on examining documents and signatures. (Black Decl., ¶¶1-3, 7, Ex. A.) He states that he examined the documents at issue and various other documents with Plaintiff’s signature and observed significant differences in signatures from the 2014 Figueroa Agreement to Plaintiff’s actual signature, which lead him to the opinion that Plaintiff did not sign the 2014 Figueroa Agreement. (Id., ¶6.) Thus, even if Safe Home were able to provide an expert on handwriting and signatures, Plaintiff has presented evidence that raises a triable issue of material fact regarding whether his signature was forged.

Finally, Safe Home argues that Plaintiff cannot establish the elements of knowledge or intent because Plaintiff cannot present any evidence to establish this cause of action. (Mot. at p.4.) There is no evidence supporting these contentions, but Safe Home only cites to Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

However, a defendant making a “no evidence” motion must introduce admissible evidence (by declaration or otherwise) that, “discovery was ‘sufficiently comprehensive, and plaintiffs’ responses so devoid of facts, as to lead to the inference that plaintiffs could not prove [their case] upon a stringent review of the direct, circumstantial and inferential evidence.’” (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1231 [quoting Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107].) In addition, a defendant making a “no evidence” motion must also establish that, by the time the case comes up for trial, the plaintiff “cannot reasonably expect to obtain” the evidence necessary to raise a triable issue of fact on the issue. (Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App.4th 64, 83; Aguilar, supra, (2001) 25 Cal.4th at 854-855 [noting that a defendant seeking summary judgment “must show that the plaintiff does not possess needed evidence . . . the defendant must also show that the plaintiff cannot reasonably obtain needed evidence . . .”].)

Here, this bare argument in the memorandum of points and authorities merely states that Plaintiff has no evidence and cannot obtain evidence. However, Safe Home has not supported these arguments with any citation to evidence that they propounded discovery on Plaintiff with regard to the fraud cause of action and Plaintiff was unable to provide discovery responses or evidence supporting his allegations. Further, these contentions were not raised with evidence in the separate statement. (CCP §437c(b)(1).)

It is Safe Home’s initial duty in summary judgment/adjudication to show that there is an absence of evidence supporting fraud or its own evidence showing that no fraud claim exists.

As Safe Home failed to uphold its initial burden on the aforementioned issues, the Court will deny the motion for summary adjudication as to Issue 1.

Employer Liability for Punitive Damages (2nd cause of action)

The complaint alleges in the 2nd cause of action that as a result of the actions in the 1st cause of action, Defendant Sales Representative X was acting with the authorization of Defendants Security One Alarm Systems (“Security One”) and Safe Home, who were at all relevant times the employer and/or supervisor for Sales Representative X. (Compl., ¶18.) Thus, Plaintiff seeks punitive damages against Security One and Safe Home. (Id.)

In support of Issue 2, Safe Home provides Safe Home’s discovery responses and the declaration of David G. Roman, who is the President and CEO of Safe Home. Mr. Roman states that Security One was an authorized dealer of Safe Home’s products and services. (Fact 1; Roman Decl., ¶3; Flynn Decl., Ex. H [SROG Nos. 1, 9].) Safe Home also points to Plaintiff’s complaint, where Plaintiff alleges that Sales Representative X was employed by Security One. (Fact 16; Compl., ¶4.)

The courts do not allow a moving party such as Safe Home to use its own discovery responses in the special interrogatories to support of its own material facts. CCP §2030.410 provides: “At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party.” (Emphasis added.) Deposition testimony may be used by a party to contradict or impeach the testimony of the deponent as a witness. An adverse party can use the deposition of a party to an action for any purpose. (CCP §2025.620.) In other words, a party can only use another party’s responses to its own propounded discovery against that party.

Thus, the only evidence in support of Issue 2 submitted by Safe Home is the declaration of Mr. Roman and Plaintiff’s complaint. With regard to Mr. Roman’s declaration, there is no further evidence other than a single sentence regarding the relationship between Safe Home and Security One. There is no agreement submitted by Mr. Roman showing that Safe Home and Security One are in fact separate companies and that Security One relationship with Safe Home is solely retained as an authorized dealer. (See Roman Decl., ¶¶3-4.) At most, a review of the 2013 Hudson Agreement shows on the top left the Security One heading, with the GE Security and Safe Home logos underneath it. “Authorized Dealer” is stated directly under the GE Security logo only. While one may infer that Safe Home is merely an authorized dealer, at the summary judgment and summary adjudication stage, the Court construes the moving papers strictly against the moving party and liberally in favor of the opposing party, and doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party. (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.) Based on this evidence, the Court does not find that Safe Home satisfied its initial burden.

Next, considering Plaintiff’s complaint at paragraph 4, Plaintiff alleges that Sales Representative X is an individual “employed by Security One as a Sales Representative.” However, Plaintiff also alleges later in the complaint that Sales Representative X was acting with the authorization of both Security One and Safe Home who were at all relevant times the employer and/or supervisor of Sales Representative X. (Compl., ¶18.) The Court will not read paragraph 4 of the complaint in a vacuum, but will consider the allegations of the complaint in their full context. As Plaintiff has alleged in the complaint that Sales Representative X is the employee of both Security One and Safe Home, this too is not sufficient as an admission by Plaintiff that Sales Representative X is solely an employee of Security One.

The Court will find that Safe Home has not satisfied its initial burden in summary judgment or summary adjudication as to the 2nd cause of action. Thus, the burden does not shift to Plaintiff to raise a triable issue of material fact on this issue.

The Court will deny the motion for summary adjudication as to Issue 2.

Negligent Training and/or Supervision (3rd cause of action)

California law permits the Plaintiff to plead that an employer is liable to her for negligently hiring, supervising, or retaining an unfit employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) The employer’s liability is based upon facts showing that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. (Id.)

In support of Issue 3, Safe Home provides the same evidence as Issue 2 (i.e., facts 1 and 16 only). For the same reasons, above, the Court will find that Safe Home has not satisfied its initial burden as to Issue 3.

Also, Safe Home argues that under Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, Plaintiff cannot establish the necessary elements of this cause of action against Safe Home. However, as discussed above, Safe Home, as the moving party, has the initial burden in showing that no such evidence exists or can be produced by Plaintiff. Thus, this argument too lacks merit.

The Court will deny the motion for summary adjudication as to Issue 3.

Conspiracy (4th cause of action)

Under California law, conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.) A claim for conspiracy must be based on a wrongful act and the claim must allege: (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting. (Unruh v. Truck Insurance Exchange (1972) 7 Cal. 3d 616, 631.)

Safe Home argues that this cause of action for conspiracy fails because the 3 prior causes of action fail. As discussed above, the motion for summary adjudication for Issues 1-3 are denied. Thus, as the motion directed at the 4th cause of action is dependent on the 1st to 3rd causes of action, the Court will deny the motion for summary adjudication as to Issue 4.

RULING:

Deny the motion for summary judgment or summary adjudication in its entirety.