Jane IL Doe v. Brightstar Residential Inc.

• Decision Date: 10 March 2022
• Docket Number: B304084
• Citation: 76 Cal.App.5th 171,291 Cal.Rptr.3d 279
• Parties: Jane IL DOE, Plaintiff and Appellant, v. BRIGHTSTAR RESIDENTIAL INCORPORATED et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

76 Cal.App.5th 171

291 Cal.Rptr.3d 279

Jane IL DOE, Plaintiff and Appellant,

v.BRIGHTSTAR RESIDENTIAL INCORPORATED et al., Defendants and Respondents.

B304084

Court of Appeal, Second District, Division 8, California.

Filed March 10, 2022

Manly, Stewart & Finaldi, Morgan A. Stewart, Irvine, Saul E. Wolf, Santa Ana, Cristina J. Nolan; Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy, Pasadena, and Kevin K. Nguyen for Plaintiff and Appellant.

Berman, Berman, Berman, Scheider & Lowary, Mark E. Lowary, Brian T. Gravdal, Los Angeles, and David H. Ryan, Arcadia, for Defendants and Respondents.

WILEY, J.

In her 20s, Jane IL Doe had the mental age of a child. A handyman sexually assaulted her at a residence for the disabled. Doe sued the residence and its owners for failing to protect her. The trial court granted summary judgment because the attack was unforeseeable.

Doe's appeal raises two central issues.

The first concerns evidence law, which can be intricate. Police reports are a prime example. Often these reports contain inadmissible hearsay, yet exceptions riddle the hearsay rule and here they overwhelmed it. The court excluded evidence from a police file that the residence knew its handyman had a history of harassing women. This evidence was relevant to whether the attack was foreseeable. It was admissible, as we explain.

Issue two is duty. What duty did the residence owe Doe? That duty was to take cost-effective steps to protect her from foreseeable harm from people like the handyman. Once the residence knew it had a harasser on its payroll, its duty was to contain that danger.

We reverse because whether the residence or its owners knew or should have known of this danger was a disputed fact. Summary judgment was inappropriate.

I

Doe has severe autism and other disabilities. She lived at Brightstar Residential Incorporated, which provides residential care to people with developmental disabilities. Doe's disabilities meant she could not do things for herself. Like Brightstar's other clients, Doe could not appreciate hazards. All Brightstar's clients required close supervision.

Mary Machado was Brightstar's chief executive officer and administrator. In a declaration, Mary Machado swore she had been the sole owner and administrator of Brightstar since its formation. Other information in the record, however, shows Mary and Norlan Machado as a married couple jointly owned and ran Brightstar.

The Machados shared responsibility for developing residence rules, for hiring and supervising employees, and for ensuring regulatory compliance. They were the top people on Brightstar's organizational chart, which listed Mary Machado as "CEO/Administrator" and Norlan Machado as "Program Manager." They trained Brightstar's employees to report situations that endangered Brightstar's clients. The employee handbook said Brightstar had a "ZERO tolerance policy" for "abuse and/or harassment of any type" involving "both clients/staff."

In 2011, the Machados hired Ruben Alcala as Brightstar's handyman, classing him an independent contractor. Alcala was dating one of Brightstar's caregivers, Martha Amparo, who had recommended Alcala.

Norlan Machado testified he instructed all of Brightstar's independent contractors, including Alcala, to have no contact with the residents beyond brief greetings, not to wander from their work area, and never to be alone with a client. Mary Machado claimed she gave Alcala similar warnings.

Alcala did not have regular hours. He worked as needed and without supervision. Only the Machados and supervisor Jessica Murillo could authorize his jobs at Brightstar. Alcala was supposed to be on the property only at scheduled times and only during the daytime.

Alcala assaulted Doe around 11:00 p.m. on May 10, 2016. Doe was in her room when Alcala came to her window and told her to climb out. She obeyed.

The lone nighttime caregiver, Carmelita Zabala, saw someone outside between Brightstar's two houses. Zabala continued her rounds checking on clients and found Doe was not in her bedroom. The window curtains were open and the blinds were up.

Zabala found Doe in the backyard, undressed from the waist down. Alcala was adjusting his pants and zipper. Zabala called to Alcala, who fled the property and then the country.

Alcala had sexually assaulted Doe. It was difficult for her to communicate, but Doe managed to convey Alcala had placed his "peephole" in her mouth and oral copulation had occurred. Investigators found male DNA, including saliva, on her breasts and genitals. The saliva was Alcala's.

Before Alcala attacked Doe, Brightstar had no surveillance cameras, no alarm system, and a single caregiver at night.

Through her father, Doe sued Brightstar and the Machados. After pleading challenges, Doe's remaining claims were for negligence, negligent supervision, negligent hiring and/or retention, and negligent failure to warn, train, or educate. Doe waived punitive damages.

Brightstar and the Machados moved for summary judgment and summary adjudication. Their motion focused "on the big-picture negligence claim" because they said there were no significant differences between Doe's causes of action. On appeal, all parties have adopted that view.

Brightstar and the Machados argued Alcala's assault was not foreseeable, they had no knowledge of his dangerous propensities, they had no duty to do more than they did, and no facts established breach or conduct by them that caused Doe's injury. They also argued no facts established the Machados had actively participated in the assault.

Doe countered the attack was foreseeable and ample evidence showed the defendants had culpable knowledge: Alcala had a propensity to abuse, he was a risk to Brightstar residents, and he was on the property when he had no right to be there. Doe argued the defendants breached their duty to Doe in many ways, including by retaining Alcala. Doe's attorney told the trial court Brightstar should have fired Alcala.

Doe relied on a police file from the May 2016 incident, along with other evidence. She discussed this file in her discovery responses and cited it repeatedly in her statement of additional material facts. The defendants objected to the police file on grounds of hearsay and relevance and because Doe's briefing did not cite the file properly.

The trial court excluded this file as inadmissible hearsay and granted the motion for summary judgment. The court determined the remaining evidence did not show a reasonable person could have anticipated Alcala's attack. The court concluded Doe had not established the elements of her negligence claims, including duty, breach, and causation against Brightstar. The Machados too were entitled to summary judgment, the court ruled, because they did not authorize or direct Alcala's wrongdoing and were not actively involved in it.

II

We independently review Doe's appeal of the summary judgment ruling. (See Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466, 475, 277 Cal.Rptr.3d 769.) We liberally construe evidence offered against the motion and resolve doubts in the opposition's favor. ( Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618, 230 Cal.Rptr.3d 415, 413 P.3d 656.) We review evidentiary rulings for abuses of discretion. ( Wicks v. Antelope Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 875, 263 Cal.Rptr.3d 397.)

A

The trial court incorrectly excluded evidence that suggested Brightstar and the Machados knew Alcala was a problem. We confine our analysis to the disputed police file, which suffices to decide this appeal.

Brightstar offers three incorrect arguments why we should not reach the issue of admissibility.

First, Brightstar argues Doe forfeited her arguments by not raising them at the trial court. This argument would extend the forfeiture rule to require the proponent of evidence at the summary judgment stage to file written opposition to evidentiary objections. There is no such rule. ( Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 851, fn. 11, 172 Cal.Rptr.3d 732 ; see also Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 526, 121 Cal.Rptr.3d 118.) Doe's lawyer argued for admitting the police file at the summary judgment hearing. Doe did not forfeit the issue.

Second, the defendants say Doe did not adequately cite the police reports in her separate statement. The defense concedes the trial court excluded the police file solely as inadmissible hearsay. Citations were not an issue for the court.

Third, the defendants argue Doe failed to identify the key facts from the police reports for the trial court. Puzzlingly, the defendants also confess they are "not certain" whether Doe adequately placed the key facts before the trial court. In any event, Doe did preserve the issue. Her summary judgment opposition argued the defendants ignored red flags about Alcala. Her opposition brief cited her separate statement, which referred to the police file. The defendants had asserted in their separate statement Doe had no facts supporting her claim they knew of Alcala's dangerous propensities. Doe disputed this and pointed to the same evidence. Citing the police file, Doe specified particulars. Doe's presentation was enough. (See Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657, 242 Cal.Rptr.3d 757 [strictly scrutinize the summary judgment proponent's submissions and liberally view the opponent's].)

Doe correctly faults the trial court for excluding evidence. Two types of police report evidence were admissible.

a

The first type concerned Norlan Machado's admissions.

Shortly after the assault, Norlan Machado told responding police officers he knew Alcala had "a history of loitering around the facility and harassing female employees." One of the officers recorded Machado's admission in a police report, which was in the file Doe included as an exhibit to her summary judgment opposition.

The trial court excluded the police file with the comment that "police reports are...