Phillips v. Tlc Plumbing, Inc.

• Decision Date: 03 April 2009
• Docket Number: No. D053072.,D053072.
• Citation: 172 Cal.App.4th 1133,91 Cal. Rptr. 3d 864
• Court: California Court of Appeals Court of Appeals
• Parties: TRISHA PHILLIPS, Plaintiff and Appellant, v. TLC PLUMBING, INC., et al., Defendants and Respondents.

172 Cal.App.4th 1133

91 Cal. Rptr. 3d 864

TRISHA PHILLIPS, Plaintiff and Appellant, v. TLC PLUMBING, INC., et al., Defendants and Respondents.

No. D053072.

Court of Appeals of California, Fourth District, Division One.

April 3, 2009.

Robert S. Kostrenich for Plaintiff and Appellant.

Maxie, Rheinheimer, Stephens and Vrevich, Sean D. Stephens and Elizabeth I. Drake for Defendants and Respondents.

OPINION

McDONALD, J.—

Plaintiff Trisha Phillips (Plaintiff) appeals a summary judgment entered in favor of defendants TLC Plumbing, Inc. (TLC), and Thad L. Condon (together Defendants).¹ Plaintiff filed the instant action after James Joseph Cain, one of TLC's former employees, shot and killed Judith Phillips (Judith), Plaintiff's mother. Plaintiff's action alleged a cause of action for negligent hiring and retention of Cain. On appeal, she contends the trial court erred by granting Defendants' motion for summary judgment because there are triable issues of material fact on her cause of action for negligent hiring and retention.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999 TLC employed Cain as a plumbing service repairman. At the time Cain was hired, Condon, as owner of TLC, learned Cain was on parole and apparently had been convicted of a domestic violence and/or arson offense involving his then wife.

On April 2, 2003, TLC dispatched Cain on a service call to Judith's residence. On April 24, TLC dispatched Cain on another service call to her residence. On or about May 21, TLC terminated Cain's employment for misuse of a company vehicle, drug and alcohol use, and apparently threatening a coworker.

Cain and Judith apparently began a social relationship in April 2003 after his first service call. Their relationship seemingly evolved over time into a romantic one. On May 19, 2005, after Judith had ended their relationship and applied for a restraining order against Cain, he shot her. She died the following day and Cain was convicted of her murder.

In May 2006, Plaintiff filed the instant complaint alleging causes of action against Defendants, including a cause of action for negligent hiring and retention of Cain.² Defendants filed a motion for summary judgment, asserting there were no triable issues of material fact. They argued Cain was not their employee at the time he killed Judith and their alleged negligence was not a legal cause of her harm. Plaintiff opposed the motion, arguing Defendants owed her a duty of care and there were triable issues of material fact that precluded summary judgment. In their reply to the opposition, Defendants argued they did not owe Plaintiff a duty of care.

On January 25, 2008, following arguments of counsel, the trial court granted Defendants' motion for summary judgment. The court stated: "Specifically, Defendants have shown, and [Plaintiff has] failed to introduce evidence refuting, that there was no employer-employee relationship between Cain and Defendants at the time Cain shot and killed Judith Phillips. [Citations.] Rather, the parties agree that, at the time Cain killed [her], he had not been employed by TLC for approximately two years and had been in a years-long personal relationship with [her]. Thus, Defendants cannot be held vicariously liable for [Plaintiff's] injuries. Additionally, Defendants have shown, and [Plaintiff has] failed to introduce evidence refuting, that, even assuming Defendants' hiring and retention of Cain was negligent, it was not reasonably foreseeable that Cain would enter into a personal relationship with [Judith] which would later lead to Cain's shooting and killing of [her] years after he provided plumbing service to her. Although causation is usually an issue which cannot be resolved on summary judgment, in this case, there is no room for reasonable difference of opinion on causal nexus." On March 19, the court entered judgment for Defendants. Plaintiff timely filed a notice of appeal.

DISCUSSION

I Summary Judgment Standard of Review

"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617, 23 P.3d 1143].) "The purpose of the law of 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. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).)

Aguilar clarified the standards that apply to summary judgment motions under Code of Civil Procedure section 437c.³ (Aguilar, supra, 25 Cal.4th at pp. 843-857.) Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the "`moving party is entitled to a judgment as a matter of law,'" the court must grant the motion for summary judgment. (Aguilar, at p. 843, quoting § 437c, subd. (c).) Section 437c, subdivision (p)(2), states: "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. 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 that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." Aguilar stated: "To speak broadly, all of the foregoing discussion of summary judgment law in this state, like that of its federal counterpart, may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case, . . . the `court should grant' the motion `and avoid a . . . trial' rendered `useless' by nonsuit or directed verdict or similar device. [Citations.]" (Aguilar, supra, 25 Cal.4th at p. 855, italics added.)

"On appeal, we exercise `an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] `The appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later. [Citation.] Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' [Citations.]" (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202 .)

II Tort of Negligent Hiring and Retention Generally

(1) "The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury. [Citation.]" (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339 .) "The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. [Citation.] However, the elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination. [Citation.]" (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 .) Nevertheless, causation may be a question of law if on undisputed facts there can be no reasonable difference of opinion on causal nexus. (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687 .)

(2) "An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]" (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565 .) "Liability for negligent hiring . . . is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees." (Mendoza v. City of Los Angeles, supra, 66 Cal.App.4th at p. 1339.) 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." (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 .) "California follows the rule set forth in the Restatement Second of Agency section 213, which provides in pertinent part: `A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . . [¶] (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[.]' (Ibid.)" (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836 .) "Liability for negligent . . . retention of an employee is one of direct liability for negligence, not vicarious liability. [Citation.]" (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].) Comment d to section 213 of the Restatement Second of Agency explains at pages 459 to 460: (3) "The principal may be negligent because he has...