Plancarte v. Guardsmark, LLC

• Citation: 118 Cal.App.4th 640,13 Cal.Rptr.3d 315
• Decision Date: 14 April 2004
• Docket Number: No. A102152.,A102152.
• Court: California Court of Appeals
• Parties: Eveilia PLANCARTE, Plaintiff and Appellant, v. GUARDSMARK, LLC., Defendant and Respondent.

13 Cal.Rptr.3d 315

118 Cal.App.4th 640

Eveilia PLANCARTE, Plaintiff and Appellant, v. GUARDSMARK, LLC., Defendant and Respondent.

No. A102152.

Court of Appeal, First District, Division 5.

April 14, 2004.

Certified for Partial Publication.^* As Modified May 12, 2004.

Steven Leo Derby, Derby law Firm, Walnut Creek, CA, for plaintiff-appellant.

Dean Michael Robinson, Guy W. Stilson, Low, Ball & Lynch, San Francisco, CA, for defendant-respondent.

JONES, P.J.

Plaintiff and appellant Eveilia Plancarte (Plancarte) appeals a summary judgment in favor of defendant and respondent Guardsmark, Inc. (Guardsmark) in her action for various tort causes of action based on the acts of Guardsmark employee Toufik Kadah (Kadah). She contends there are triable issues of fact concerning Guardsmark's knowledge of the foreseeability of Kadah's conduct and whether his conduct constituted negligence. She also contends the court abused its discretion in denying her motion for new trial.

BACKGROUND

Kadah's Employment by Guardsmark

Guardsmark is a security service company that contracts for the placement of private security guards. It first hired Kadah as a Guardsmark security guard in October 1997. Kadah left for personal reasons in December 1997 and was rehired in November 1998.

Guardsmark issued Kadah a "blazer uniform" to wear on the job. It consisted of a white shirt, necktie, navy blazer with a company patch, and gray slacks. Under the terms of his employment he was forbidden to carry a firearm or other weapon.

Until the incident that gave rise to this lawsuit, Guardsmark had not received any reports of inappropriate behavior by Kadah. It had only once removed him from an assignment after the corporate client complained his accent made him difficult to understand.

On March 9, 2000, Guardsmark assigned Kadah to an office building commonly known as 135 Commonwealth, the first day it was engaged to provide security services to the building.

Plancarte Action

Plancarte is an immigrant from Mexico who speaks limited English and does not read or write in any language. In her second and operative complaint against Kadah and Guardsmark she alleged generally: She worked as a janitor at 135 Commonwealth. At approximately 8:45 p.m. on March 9, 2000, she was cleaning a men's bathroom in the building when Kadah, wearing a "law enforcement type uniform" with a badge sewn on the chest, approached her and placed himself between her and the bathroom's exit so she could not leave. He violently grabbed her left breast with one hand while squeezing her face with the other. She was trapped for approximately ten minutes while he attempted to kiss her. When a woman knocked on the bathroom door, Kadah violently pushed Plancarte away into a wall. Plancarte escaped from the bathroom when the woman opened the door. Because her English is poor, Plancarte tried to tell the woman she had been sexually assaulted by using hand gestures. Kadah exited the bathroom and chased Plancarte through the building and down a stairway, where she fell.

Plancarte's complaint contained causes of action against Kadah only for assault, battery, false imprisonment, and intentional infliction of emotional distress based on these general allegations. It also contained a cause of action against Kadah only for negligence, alleging: (a) he knew or should have known she was cleaning the bathroom; (b) he "carelessly burst unannounced into the" bathroom and frightened her to such a degree she feared harm; (c) she fled the bathroom attempting to escape the danger she perceived from Kadah's abrupt and negligent behavior; (d) she sustained physical and emotional injuries as a result of his negligence.

Plancarte's complaint contained causes of action against Guardsmark titled "respondeat superior", negligent hiring, and negligent supervision. Her cause of action for respondeat superior alleged: a security company dresses its employees in law enforcement type uniforms to elicit the public's compliance to the authority they represent; a foreseeable consequence of security work in which an employee wears a law-enforcement type uniform is that the employee will take advantage of his perceived authority to assault members of the public; Kadah acted within the course and scope of his employment as a uniformed security guard for Guardsmark, making Guardsmark liable for all Kadah's acts and resulting damages alleged in the negligence, assault, battery and false imprisonment causes of action against Kadah.

Plancarte's causes of action for negligent hiring and supervision alleged: Guardsmark knew or should have know that Kadah was unfit to perform the duties for which he was employed and that employing him posed an undue risk to people like her because (a) Guardsmark's psychological testing of Kadah indicated he was deceptive and had engaged in deviant sexual behavior; (b) it did not sufficiently investigate his work experience; (c) it aided Kadah in cheating on the examinations necessary to qualify as a security guard; (d) it failed to supervise him adequately when it knew he was unqualified to act as a security guard.

Motion for Summary Judgment

Guardsmark moved for summary judgment on the grounds the alleged assault was not related to Kadah's employment and there was no evidence of negligent hiring or supervision.

Plancarte opposed the motion on the grounds there were triable factual issues as to whether it was foreseeable that Kadah would misuse his apparent authority as a security guard to assault her. Plancarte declared in support of her opposition that when Kadah came into the bathroom, she considered leaving but she thought she could trust him and had to obey him because he was wearing a uniform. She also supported her opposition with the deposition testimony of Kadah's supervisor, Christine Graves, who testified that, in her experience, the public is socialized to associate a person wearing a uniform as having a position of authority or responsibility.

Plancarte also opposed the motion on the grounds there were triable factual issues as to whether some of Kadah's conduct was within the scope of his employment because, according to his version of their encounter in the bathroom, he acted negligently. She supported this opposition with the notes supervisor Graves took during her interview of Kadah after the incident and with the report of a private investigator Guardsmark hired to investigate the incident.

According to Graves's notes, Kadah scared Plancarte while she was cleaning the bathroom because he "burst" in "unexpectedly" to wash his hands. He told Plancarte not to worry. After washing his hands, he put his hand on her shoulder to calm her, telling her he was leaving. As he opened the bathroom door, a woman who worked in the building asked for assistance with a key. He helped the other woman with her key, then returned to the bathroom to calm Plancarte further and saw her running down the hall.

The private investigator's report of his interview with Kadah essentially accords with Graves's notes.

Plancarte further opposed the motion on the grounds there were triable issues of fact regarding the negligent hiring and supervision causes of action in light of the evidence of Kadah's untrustworthiness. She supported her argument with evidence that Kadah does not speak English, contrary to a Guardsmark requirement; he initially claimed to be a United States citizen on his job application, but later, with Graves's assistance, corrected his status to resident alien; he has two social security numbers; his 1997 and 1998 job applications contained discrepancies in the information about his wife; he sought unemployment benefits in 1998 before returning to his Guardsmark job claiming he had been "laid off," although he left voluntarily; his psychological test was flagged for retesting; and his test answers suggested lawlessness and sexual deviancy.

The court entered judgment for Guardsmark after granting its motion.¹ Plancarte's motion for new trial based on newly discovered evidence was denied. This appeal followed.

DISCUSSION

Standard of Review^**

Motion for New Trial

Plancarte contends the trial court abused its discretion in denying her motion for new trial on the grounds of newly-discovered evidence that would demonstrate that Guardsmark ratified Kadah's wrongful acts.

A trial court's broad discretion in ruling on a motion for new trial is accorded great deference on appeal. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160, 79 Cal.Rptr.2d 641 (Sherman).) However, particularly when reviewing an order denying a new trial, the appellate court is required to review the entire record to determine independently whether the error on which the new trial motion is based is prejudicial. (Id. at pp. 1160, 1161, 79 Cal.Rptr.2d 641.)

Code of Civil Procedure section 657, subdivision 4, authorizes the grant of a new trial when the moving party has discovered new, material evidence which it could not, with reasonable diligence, have discovered and produced at trial. The moving party must establish (1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the moving party's case. (Sherman, supra, 67 Cal.App.4th at p. 1161, 79 Cal.Rptr.2d 641.)

Plancarte moved for new trial based on the newly discovered evidence that Guardsmark had paid for Kadah's defense in the instant case. She argued that in so doing Guardsmark ratified Kadah's conduct because it knew he had pled nolo contendere to a misdemeanor sexual battery by the time he answered Plancarte's civil complaint.⁵

In support of her motion Plancarte's attorney, Steven Derby, declared: the trial court granted summary judgment for Guardsmark on December 9, 2002. On December 10 he propounded discovery on Kadah, who remained a defendant in the action, through Kadah's attorney, Marc Eisenhart.⁶ On December 18 Eisenhart, by telephone,...