On 07/07/2017 JANE IL DOE filed a Personal Injury - Other Personal Injury lawsuit against BRIGHTSTAR RESIDENTIAL INCORPORATED INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and DEIRDRE HILL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
PATRICIA D. NIETO
ISHIMARU TOMOYA E.
JANE IL DOE
DOES 1 TO 100
BRIGHTSTAR RESIDENTIAL INCORPORATED INC
DAVID H. RYAN ESQ.
BRIGHTSTAR RESIDENTIAL INCORPORATED INC.
MARY MACHADO (DOE 2)
NORLAN MACHADO (DOE 1)
MACHADO NORLAN-DOE 1
MACHADO MARY-DOE 2
DOE JANE IL
TOMOYA E. ISHIMARU
STEWART MORGAN A. ESQ.
MORGAN A. STEWART
STEWART MORGAN A.
BERMAN BERMAN BERMAN SCHNEIDER & LOWARY
DAVID H. RYAN ESQ
RYAN DAVID HOWARD
4/3/2018: Proof of Service (not Summons and Complaint)
6/14/2018: Request for Judicial Notice
7/28/2018: Other -
8/31/2018: Motion to Compel
10/17/2018: Other -
12/24/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
1/9/2018: DECLARATION OF MORGAN A. STEWART IN SUPPORT OF PLAINTIFF JANE IL DOE'S OPPOSITION TO DEFENDANT BRIGHTSTAR RESIDENTIAL INC.'S MOTION TO QUASH DEPOSITION SUBPOENA TO THE CYPRESS POLICE DEPARTMENT AND FO
12/28/2017: ANSWER OF DEFENDANTS NORLAN MACHADO AND MARY MACHADO TO FIRST AMENDED COMPLAINT
12/27/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS BRIGHTSTAR RESIDENTIAL INC., NORLAN MACHADO & MARY MACHADO'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
7/7/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, EX PARTE
at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion for Sanctions (Against Norlan Machado and his Counsel of Record) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Request for Dismissal (as to Reuben Alcala only.); Filed by JANE IL DOE (Plaintiff)Read MoreRead Less
Request for Dismissal; Filed by Jane IL Doe (Plaintiff)Read MoreRead Less
at 08:30 AM in Department B, Deirdre Hill, Presiding; Case Management Conference - HeldRead MoreRead Less
at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion to Compel (Answers at the Deposition) - Held - Motion GrantedRead MoreRead Less
at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion for Sanctions (Against Norlan Machado and his Counsel of Record) - Held - Motion DeniedRead MoreRead Less
Order (on motion to compel answers at deposition); Filed by ClerkRead MoreRead Less
Minute Order ( (Hearing on Motion for Sanctions Against Norlan Machado and hi...)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Hearing on Motion for Sanctions Against Norlan Machado and hi...) of 03/01/2019); Filed by ClerkRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by ClerkRead MoreRead Less
Application-Miscellaneous (FOR JANE IL DOE GUARDIAN AD LITEM(FAXED) ); Filed by Attorney for Pltf/PetnrRead MoreRead Less
NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
Complaint; Filed by JANE IL DOE (Plaintiff); Tomoya E. Ishimaru (Plaintiff)Read MoreRead Less
Application ; Filed by JANE IL DOE (Plaintiff)Read MoreRead Less
Application-Miscellaneous (FOR JANE IL DOE GUARDIAN AD LITEM(FAXED) ); Filed by Attorney for Pltf/PetnrRead MoreRead Less
Application ; Filed by Plaintiff/PetitionerRead MoreRead Less
APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, EX PARTERead MoreRead Less
ComplaintRead MoreRead Less
COMPLAINT FOR DAMAGES 1. SEXUAL BATTERY (CIVIL CODE 1708.5); ETCRead MoreRead Less
Declaration; Filed by TOMOYA E. ISHIMARU (Non-Party); JANE IL DOE (Plaintiff)Read MoreRead Less
Case Number: BC667499 Hearing Date: December 05, 2019 Dept: SWB
Torrance Dept. B
JANE IL DOE, et al.,
BRIGHTSTAR RESIDENTIAL, INC., et al.,
Hearing Date: December 5, 2019
Moving Parties: Defendants Brightstar Residential, Inc., Norlan Machado (Doe 1), and Mary Machado (Doe 2)
Responding Party: Plaintiffs Jane Il Doe, et al.
Motion for Summary Judgment or, in the alternative, Summary Adjudication
The court considered the moving, opposition, and reply papers.
The motion for summary judgment is GRANTED. The motion for summary adjudication is moot in light of the ruling on the motion for summary judgment.
On July 16, 2018, plaintiff Jane Il Doe, by and through her guardian ad litem, Tom Ishimaru, filed a Third Amended Complaint against defendants Brightstar Residential Incorporated, Inc., Reuben Alcala, Norlan Machado (Doe 1), and Mary Machado (Doe 2) for sexual battery, sexual assault, sexual harassment, gender violence, IIED, negligence, negligent supervision, negligent hiring and/or retention, negligent failure to warn, train, or educate, and constructive fraud.
The purpose of a motion for summary judgment or summary adjudication “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.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).
Defendants Brightstar Residential, Inc., Norlan Machado (Doe 1), and Mary Machado (Doe 2) request summary judgment on the four remaining causes of action against them in the Third Amended Complaint on the ground that there are no triable issues of material fact and, as a matter of law, defendants prevail.
In the alternative, defendants seek summary adjudication of the 6th cause of action for negligence, 7th cause of action for negligent supervision, 8th cause of action for negligent hiring and/or retention, 9th cause of action for negligent failure to warn, train, or educate, the claim for punitive or exemplary damages, the claim for statutory damages, and the claim for attorney’s fees.
In the TAC, plaintiff alleges that she is a severely autistic adult, who has limited communications skills. TAC, ¶29. Reuben Alcala was an employee, vendor, and/or independent contractor of Brightstar, acting as a handyman. Id., ¶3. Brightstar operates a residential care facility for individuals with disabilities. Id., ¶4. Norlan Machado is the husband of Mary Machado, who co-owns Brightstar and controls and operates it. N. Machado and M. Machado were responsible for hiring, retaining, or employing Alcala and permitting access and control over the property to Alcala. They knew or should have known of Alcala’s dangerous and sexual propensities and not permitted Alcala unfettered access to the property. Id., ¶5.
Plaintiff further alleges that on May 10, 2016, plaintiff was discovered in the backyard of the property, disrobed and naked from the waist down. She crawled through a bedroom window to access the backyard at the prompting and direction of Alcala. Id., ¶36. Subsequent to discovery in the backyard, plaintiff was discovered to have been sexually assaulted. Id., ¶37. Subsequent to the reported assault, an arrest warrant was issued for Alcala and he fled to Mexico. Id., ¶39.
The parties do not dispute the following: Carmelita Zabala is a certified Direct Support Professional (“DSP”) who had worked for Brightstar since October 5, 2005. She worked the night shift six days a week and was the nightshift DSP on duty on May 10, 2016. At about 11:00 p.m., as she was making rounds, she saw a shadow outside, but was not certain it was a person. She checked the clients and saw that the clients, including plaintiff, were in their beds. Still concerned, she checked outside and saw that a gate was open. She called M. Machado and eventually spoke with N. Machado, who told her to check the clients again. When she did, she saw that plaintiff was not in her room, and she reported this fact to N. Machado as she looked throughout the house for plaintiff. Defendants’ Separate Statement of Undisputed Material Facts, No. 3 (Zabala depo.; J. Murillo depo.). Zabala stayed on the phone with N. Machado, who called the police. Zabala went outside and walked toward the open gate when she saw Alcala’s car was on the street. As she headed back to the house, she saw plaintiff, naked from the waist down. She tried to question plaintiff who did not respond to her, and then she directed plaintiff to her room. Zabala then saw Alcala fixing his pants as he walked toward the gate. DUMF 4 (Zabala depo.). Zabala cussed at Alcala, asking what he had done to plaintiff. Alcala denied doing anything, offered to pay her to be quiet, and got into his car, and drive off. DUMF 5 (Zabala depo.). N. Machado came to the property and made a police report. Plaintiff’s mother arrived and went to the hospital with plaintiff and supervisor Jessica Murillo. DUMF 6 (Zabala depo., Murillo depo.).
Plaintiff’s objections are ruled on as follows: The court declines to rule on Nos. 1-59. CCP §437c(q). As to M. Machado’s declaration, Nos. 60-124 are OVERRULED. As to N. Machado’s declaration, Nos. 125-199 are OVERRULED. As to David Ryan’s declaration, Nos. 200-208 are OVERRULED.
Defendants’ objections are ruled on as follows: SUSTAINED as to Nos. 1-3 (Exh. I Police Report); Nos. 4-6 (Exh. X - Cypress PD Report); Nos. 7-9 (Exh. U - DSS Report); No. 12 (Exhs. O, P, Q Newspaper articles) and DENIED as to Nos. 10, 11, 13, 14, 15, 16, 17, 18, and 19.
Issue No. 1: 6th cause of action for negligence
Plaintiffs allege that prior to and after Alcala’s sexual harassment, molestation, and abuse of plaintiff, defendants knew or should have reasonably known that Alcala had or was capable of sexually, physically, and/or mentally abusing plaintiff. SAC, ¶108. Defendants owed plaintiff a special duty of care in addition to a duty of ordinary care. Id., ¶109. Defendants breached their duties of care to plaintiff by allowing Alcala to come into contact with plaintiff and other vulnerable disabled individuals, without supervision; by failing to adequately hire, supervise, and/or retain Alcala who they permitted and enabled to have access to plaintiff; by failing to investigate or otherwise confirm or deny such facts about Alcala; by failing to tell or conceal from plaintiff, her father, and law enforcement officials that Alacala was or may have been sexually harassing, molesting, and abusing disabled individuals, including plaintiff; and by holding out Alcala to plaintiff and to her father as being in good standing and trustworthy. Id., ¶110. Plaintiff further alleges that defendants breached their duty by failing to investigate such facts. Id., ¶111.
Plaintiff also alleges that defendants breached their duty by failing to adequately monitor and supervise Alcala and/or stopping Alcala from committing wrongful sexual acts with disabled individuals, including plaintiff. Personnel and/or office records of Brightstar reflect numerous incidents of inappropriate sexual conduct and conduct with disabled individuals by employees, agents, and contractors, staff, and others, including incidents involving Alacala, both on and off the premises. Id., ¶112.
“[T]he imposition of tort liability for a third party’s sexual misconduct requires that direct negligence be established.” Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal. App. 4th 377, 395. “’A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.’ . . . ‘[l]iability under this rule is limited by basic principles of tort law, including requirements of causation and duty.’ Furthermore, ‘[l]iability under this rule also requires some nexus or causal connection between the principal’s negligence in selecting or controlling an actor, the actor’s employment or work, and the harm suffered by the third party.’” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal. App. 4th 1133, 1140 (citations omitted). “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.” Id. at 1139. “Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” Delfino v. Agilent Technologies, Inc. (2006) 145 Cal. App. 4th 790, 815.
Under the 6th cause of action, plaintiff asserts theories of negligent supervision, negligent hiring/retention, and negligent failure to warn, train, educate, which are also alleged as separate causes of action. The court will address these theories under the respective causes of action.
“’A tort . . . involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. . . . Thus, in order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’” Juarez, supra, at 400-401 (citation omitted).
In assessing whether, and to what extent, defendants owed a duty of care to plaintiff, the Rowland factors supports the imposition of a duty of care on defendants to have taken reasonable protective measures to protect plaintiff from the risk of sexual abuse/misconduct.
Alternatively, the special relationship between caregiver defendants and plaintiff also gives rise to a duty of care. “[L]iability for negligence ‘is not imposed for the failure to assist or protect another, absent some legal or special relationship between the parties giving rise to a duty to act.’” Juarez, supra, at 410. “Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger. Consequently, California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties.” Id. Such is the case here, where a greater degree of care is owed to Brightstar’s clients, including plaintiff, because of their lack of capacity to appreciate risks and avoid danger.
“An action for negligence additionally requires a showing that the defendant breached a legal duty owed to the plaintiff, and that the breach was a proximate or legal cause of the plaintiff’s injuries.” Juarez, supra, at 411.
As to duty, “the existence and scope of the defendant’s specific duty to protect against third party crime is a question of law for the court to resolve.” Castaneda v. Olsher (2007) 41 Cal. 4th 1205, 1213-14. “The duty analysis we have developed requires the court in each case . . . to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. ‘Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.” Id. at 1214.
“Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.” Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 678. “An act must be sufficiently likely before it may be foreseeable in the legal sense. That does not mean simply imaginable or conceivable.” Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal. App. 4th 900, 996. 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.” Ann M., supra, at 676. “’The dispositive issue remains the foreseeability of the criminal act. Absent foreseeability of the particular criminal conduct, there is no duty to protect the plaintiff from that particular type of harm.’” Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal. App. 4th 419, 431 (citation omitted).
There is no question that, as a matter of law, defendants had a duty of care toward plaintiff to protect her against sexual abuse. As to whether defendants had a duty though to take affirmative action to control Alcala’s wrongful conduct with respect to this incident that occurred at 11:00 p.m. when Alcala was not working and not supposed to be on the property, plaintiffs’ evidence is insufficient to show that Alcala’s criminal act was “sufficiently likely.” Further, defendants present evidence that Alcala’s criminal act was not “reasonably anticipated.”
Alcala was retained as a handyman in 2011 by Brightstar. He was referred by employee Martha Amparo, who was Alcala’s girlfriend. M. Machado depo., at 319. M. Machado interviewed Alcala but did not ask for references or about any of the locations where he had previously worked. M. Machado depo., at 318. According to N. Machado, “Alcala was interviewed, likely by both Mary and me. Additionally, we knew that he was involved with one of our employees, . . . who recommended him. Also, we checked a reference from a restaurant owner of whom Alcala had provided handyman services.” N. Machado decl., ¶6. See also defendants’ Response to Special Interrogatory No. 6 (“Alcala’s handwork was recommended by the owners of a local restaurant; Brightstar personnel interviewed him. All of his references were favorable.”). M. Machado testified that she did not do a background check on him or fingerprint him. M. Machado depo., at 320.
According to both M. Machado and N. Machado, Alcala was an independent contractor. He was paid for each project he performed. He did not have regular hours; he worked at the facility when his services as a handyman were needed. He brought his own tools, and he performed his work without supervision of that work. N. Machado decl., ¶5. Independent contractors, including plumbers, electricians, gardeners, repair people, and consultants, are not required to have DOJ clearance, and Brightstar is not required to conduct background checks or have them fingerprinted. Id., ¶4. Because he had no contact “with our clients, we were not required to conduct a background check of him before he began providing handyman services.” Id., ¶6. See also Peter Zertuche depo. (replying “no” when asked if a licensee must “conduct a criminal background check for every repairman, handyman, vendor that sets foot on a licensee’s premises.”). Zertuche depo., at 30.
N. Machado states in his declaration that at the time they hired Alcala, he was not aware of any prior criminal activity on his part whatsoever. They had not learned of any information that provided any indication that there was anything in his background to suggest that he had previously engaged in any type of criminal or abusive conduct with any other individual, and nothing to suggest any history of prior sexual misconduct. N. Machado decl., ¶6.
As to whether defendants knew or should have reasonably known that Alcala was capable of sexually, physically, and/or mentally abusing plaintiff, Officer Elizabeth Alvillar testified that she performed a criminal history check on Alcala and she found “[n]othing.” Alvillar depo., 56-57.
Further, employee Lorena Chavez testified that Alcala “would barely be there, because it almost took him a year to do the bathroom, to remodel it, because he had other jobs.” Chavez depo., at 112. She stated that most of the time he was there would be when the clients were not there, between 1:00 to 5:00. Id., at 113. Plaintiff attended day school programs outside the facility on most days from 8:00 to 3:00, “so she would not have been at the home for most of the regular working hours when Alcala was there.” N. Machado decl., ¶9.
Alcala did not interact with any of the clients, other than greetings. Carmelita Zabala depo., at 148. Zabala testified that she never saw Alcala interact with plaintiff. Id., at 162. When asked “other than the night of the incident, did you ever see Alcala come onto the property when he wasn’t supposed to be working?” she responded “no.” Id., at 147-48. When asked “prior to the incident, had you ever received or known there to be any complaints about Alcala?” she responded, “No.” Id., at 166. She responded “no” when asked whether she “heard of any complaints about Alcala making sexual advances towards any residents prior to the incident.” Id., at 166. She never heard anything about Alcala and sexual misconduct while he still worked as a handyman. Id., at 170. Other than the night of the incident, she never saw Alcala hanging around the backyard after vising hours. Id.
Jessica Murillo did not find anything “strange or odd” about Alcala. Murillo depo., at 116. When remodeling the bathrooms, he “pretty much came in the afternoon when nobody was there.” Id., at 112. When asked if any clients “were there, were they kept away from what Reuben was doing?” she responded “Yes.” Id., at 119. She responded “no” when asked whether Alcala had ever shown up at the property at night. Id., at 142. She also responded “no” when asked whether Alcala was showing up at the property on days and time that he was not working. Id.
According to employee Lorena Chavez, prior to the date of the incident, she never received or knew of any complaints regarding Alcala. She never heard or received any complaints that Alcala was engaging in sexual misconduct or advances towards a client. Chavez depo., at 133.
According to N. Machado, to the best of his knowledge and understanding, from the day he was hired, Alcala stayed at the location of his projects and did not contact the clients. He was never told of Alcala violating the rules concerning the clients. He never received any report or otherwise heard that Alcala was in plaintiff’s bedroom when she was there. N. Machado decl., ¶9. He further states that during the day there is a supervisor at the premise, along with at least two DSPs and generally a cook. “All of them are trained to know that protecting the safety of the clients is a primary duty. . . .” Id., ¶8. He also states that he is aware that one evening Alcala went to Brightstar to pick up tools. He was called by a supervisor or by the DSP on duty. He instructed the caller to tell Alcala that he could not be there after hours, even to get his tools, and that he was to leave immediately. When he next saw Alcala, he reprimanded him harshly for appearing at Brightstar after hours, “telling him in no uncertain terms that he was not to come to the premises after hours. . . . I did not consider that his presence to pick up tools was indicative of any sinister motive.” Id., ¶10.
As to a duty to train, N. Machado states that it is his practice to walk new independent contractors through the facility, in part to familiarize them with the property and in part to familiarize them with the rules governing the client, including that they are not to have any contact with the clients beyond brief greetings and are not to attempt to converse with the clients. He states that he gave those standard warnings to Alcala shortly after he began working at Brightstar. He does not regularly tell new employees or new independent contractors that they should not harm or sexually abuse the clients because such criminal acts of which adults are aware and such a warning is simply common sense. N. Machado decl., ¶7.
Defendants have met their burden to show that plaintiffs cannot establish the elements for negligence, including duty, breach, and causation.
In opposition, plaintiffs argue that there were “red flags” that Brightstar “chose to ignore”—primarily, that Alcala was going onto the property, regularly, during non-working hours, unsupervised. Plaintiffs cite to a LAPD Report Case File, which the court finds inadmissible. Plaintiffs also contend that Alcala would go to the property to give his girlfriend DSP Marta Ampara her lunch. Plaintiffs assert that a year prior to the incident, Zabala caught him several times on the property at night, but does not present any admissible evidence of such.
The court thus finds that plaintiffs have failed to proffer sufficient evidence to show that there are triable issues of material fact.
Issue No. 2: 7th cause of action for negligent supervision
“[T]here can be no liability for negligent supervision ‘in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.’” Juarez, supra, at 395. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” Z.V. v. County of Riverside (2015) 238 Cal. App. 4th 889, 902 (citation omitted).
Plaintiff alleges that defendants owed plaintiff a duty to provide reasonable supervision of Alcala, to use reasonable care in investigating Alcala’s background, and to provide adequate warning to plaintiff, plaintiff’s father, other residential care recipients, and the public of Alcala’s dangerous propensities and unfitness. TAC, ¶115. Brightstar represented that Alcala was not a sexual threat to disabled individuals and others who would fall under Alcala’s influence, control, direction, and guidance. Id., ¶116. Defendants did not have in place a system or procedure to reasonably investigate, train, supervise, and/or monitor employees, agents and contractors, including Alcala, to prevent pre-sexual grooming and/or sexual harassment, molestation, and abuse of disabled individuals. Id., ¶118. This is evidenced and includes the fact that Alcala was on the property at 11 p.m., unsupervised, with access to group home individuals, and with no legitimate work obligation to undertake at the time of the sexual assault. Id., ¶118. Defendants were put on notice and knew or should have known that Alcala had or may have been previously engaged and was continuing to engage in unlawful sexual conduct with other disabled individuals, and that it was foreseeable that Alacala was engaging or would engage in illicit sexual activities with plaintiff. Id., ¶120. Other third parties, disabled individuals, law enforcement officials and/or parents informed defendants of molestations committed by Alcala or of conduct that would put a reasonable person on notice of such propensities to molest and abuse. Id., ¶121.
Plaintiff further alleges that defendants breached their duty to plaintiff by failing to adequately monitor and supervise Alcala and/or stopping Alcala from committing wrongful sexual acts with disabled individuals including plaintiff. Id., ¶124.
Alcala was an independent contractor who made repairs to Brightstar’s physical plant. During business hours, he had access to Brightstar’s administrative staff who oversaw his work in addition to N. and M. Machado. Response to Special Interrogatory No. 2. Several employees testified that when Alcala was working, he was not supervised. Defendants have shown though that they had no duty to “supervise” Alcala while he was doing maintenance work as an independent contractor. As stated above, most of the time he would be at the facility when the clients were not there, and he did not interact with the clients, other than greetings. Further, if clients were there, they were kept away from what Alcala was doing. Murillo depo., at 119. See also N. Machado decl., ¶¶7, 9, where he warned Alcala that he was not to have any contact with the clients beyond a brief greeting and that he should not be in a room alone with a client. Further, it is undisputed that Alcala did not have a key to the Brightstar homes. DUMF 39.
In opposition, plaintiffs argue that defendants had only one DSP on staff at night despite there being two houses on the property. Further, plaintiffs contend, defendants allowed Alcala to gain access to the property and failed to take reasonable efforts to limit Alcala’s access to the property in time and/or scope. The evidence indicates otherwise. He was told that he could not be on the property at night. He was told he could only work during the day and to stay away from the clients and to keep his tools and all his work equipment away from the clients. N. Machado depo., at 346. Plaintiffs present no competent evidence that defendants had prior actual knowledge of any propensity of Alcala to sexually assault disabled adults.
The court finds that defendants have met their burden of showing that plaintiff cannot establish the elements of negligent supervision. Lack of supervision was not the cause of the sexual assault. Defendant N. Machado testified that Alcala had not worked at the premises for at least three weeks. He was not working when he sexually assaulted Jane Doe at 11:00 p.m. The parties do not dispute that he was not supposed to be at the property at the time of the incident.
Plaintiffs fail to present sufficient evidence to raise a triable issue of material fact as to whether defendants had knowledge that Alcala could not be trusted to act properly without being supervised while he was working or that he had a propensity to sexually assault.
Issue No. 3: 8th cause of action for negligent hiring and/or retention
“In California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.” Juarez, supra, at 395. In Roman Catholic Bishop v. Superior Court (1996) 42 Cal. App. 4th 1556, a victim of childhood sexual abuse sued the church for negligent hiring, supervision, and retention, claiming that the church should have known of the sexual propensities of a parish priest. Her action was dismissed on summary judgment because she could not prove that the church had any basis upon which to suspect that the priest had deviant tendencies. Id. at 1565-67. In Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1213, a hairstyling school could not be found liable under a negligent hiring theory for an employee’s molestation of a minor where there was nothing that would have indicated the employee posed a threat of harm to minors he might encounter in the course of the work he was hired to perform.
“Liability for negligent hiring and supervision 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 (1998) 66 Cal. App. 4th 1333, 1339-40.
Plaintiff alleges that defendants owed plaintiff a duty to not hire and/or retain Alcala, given his dangerous and exploitive propensities, which defendants knew or reasonably should have known had they engaged in a meaningful and adequate investigation of his background prior to his hiring. TAC, ¶127. At no time did defendants have in place a system or procedure to reasonably train, investigate, supervise, and/or monitor Alcala, to prevent pre-sexual grooming and/or sexual harassment, molestation, and abuse of disabled individuals. Id., ¶129. They did not implement a system or procedure to oversee or monitor conduct toward disabled individuals. Id.
See evidence above under the 6th cause of action, which incorporated negligent hiring. Defendants have met their burden of showing that plaintiffs cannot establish the elements of negligent hiring and/or retention. Defendants present evidence to show that they did not know that Alcala was “unfit” and that they did not fail to use reasonable care to discover any “unfitness” before retaining him as a handyman. Although defendants did not do a background check, a criminal history check by Officer Alvillar turned up “nothing.” Plaintiffs present no evidence to raise a triable issue of material fact that defendants breached a duty. The parties do not dispute that he was hired to be a handyman/maintenance worker, as an independent contractor, on a project by project basis.
As to retention, the evidence is undisputed that he fled the country the night of the incident. Defendants did not retain him as an independent contractor. Defendant also stated that Alcala last performed work at Brightstar on March 15, 2016. Response to Special Interrogatory No. 18.
Issue No. 4: 9th cause of action for negligent failure to warn, train, or educate
Plaintiff alleges that defendants owed plaintiff a duty to take reasonable protective measures to protect plaintiff and other disabled individuals from the risk of sexual harassment, molestation, and abuse by Alcala by properly warning, training, or educating plaintiff about how to avoid such a risk. TAC, ¶137. Defendants breached their duty to take reasonable protective measures to protect plaintiff from the risk of sexual harassment, molestation, and abuse by Alcala, by failing to supervise and/or stop Alcala from committing wrongful sexual acts with plaintiff. Id., ¶139. Defendants knew or should have known in the exercise of reasonable diligence that an undue risk to plaintiff existed. Id., ¶140.
Defendants have met their burden to show that plaintiffs cannot establish the elements of “negligent failure to warn, train, or educate.” See evidence under the 6th cause of action with respect to duty to train. See also evidence under the 7th cause of action with respect to supervision. There is no evidence that defendants had knowledge that Alcala posed a threat of harm. The harm occurred at 11:00 p.m. when he was not working. M. Machado testified that she had told him that he was supposed to stay away from the clients; that he was supposed to keep his tools away, where client could not trip on them; that anything toxic had to be kept away; and that he had to be neat and tidy. M. Machado depo., at 345, 346. She testified that she told him that he could only work during the day. Id., at 346.
Plaintiffs have failed to proffer sufficient evidence to raise a triable issue of material fact.
Issue No. 5: Claim for punitive or exemplary damages
At the prayer at 3., plaintiff seeks punitive or exemplary damages against moving defendants.
Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”
“’Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294(c)(1).
As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).
“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal. App. 3d 31, 36. “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” Cruz v. Home Base (2000) 83 Cal. App. 4th 160, 167 (citation omitted).
Further, Civil Code §3294(b) limits the liability of an employer for punitive damages based upon acts of an employee unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. In the case of a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. Id.
Plaintiff proffers no evidence to show oppression, fraud, or malice. Further, as stated above, plaintiff presents insufficient evidence that defendants had advance knowledge of the unfitness of Alcala and employed him with a conscious disregard of the rights or safety of others.
Issue No. 6: Claim for statutory damages
At the prayer at 4., plaintiff seeks “[a]ny appropriate statutory damages.”
Summary adjudication is improper as to a claim for damages other than punitive damages unless the party complies with the requirements under CCP §437c(t), which defendants did not do.
Issue No. 7: Claim for attorney’s fees
At the prayer at 7., plaintiff seeks attorney’s fees under CCP §1021.5, Civil Code §§52, 52.4, or otherwise allowable by law.
Summary adjudication is improper as to a claim for damages other than punitive damages unless the party complies with the requirements under CCP §437c(t), which defendants did not do.
“Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done. . . . They are not responsible to third persons for negligence amounting merely to nonfeasance, to a breach of duty owing to the corporation alone; the act must also constitute a breach of duty owed to the third person.” United States Liability Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal. 3d 586, 595. “’An officer or director will not be liable for torts in which he does not personally participate, of which he has no knowledge, or to which he has not consented. . . . While the corporation itself may be liable for such acts, the individual officer or director will be immune unless he authorizes, directs, or in some meaningful sense actively participates in the wrongful conduct.’” Frances T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490, 503-504 (citation omitted). The evidence indicates that N. Machado and M. Machado’s roles were that of officers or directors. N. Machado testified that he serves “more as like a program manager, . . which is non-paying.” N. Machado depo., at 42. M. Machado testified that N. Machado had involvement in hiring and training and shared in the responsibility as the administrator for enduring compliance with state regulations for the operation of the facility. M. Machado depo., at 143, 145, 146.
Plaintiff has not presented any evidence that N. Machado or M. Machado authorized, directed, or was actively involved in Alcala’s wrongful conduct.
Accordingly, the motion for summary judgment is GRANTED.
Defendants are ordered to give notice of the ruling.