Carter v. Chans Market

Filed 8/29/07 Carter v. Chans Market CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph F. De Vanon, Jr., Judge. Reversed.

Mark Schreiber, Rosaline Ayoub and Scott M. Richter for Defendant and Respondent.

Anthony O. Egbase for Plaintiff and Appellant.

_________________________

INTRODUCTION

Plaintiff, Janice Carter, sued defendants, Joseph Shane and his employer, Chans Market, Inc., alleging assault, battery, and intentional infliction of emotional distress. Chans Market moved for summary judgment on the ground there is no nexus between Shanes work as a grocery clerk and his conduct of grabbing Carters crotch, with the result it could not be held vicariously liable for Shanes conduct. Carter appeals from the judgment entered after the trial court granted Chans Markets motion. Factual disputes exist here precluding summary judgment. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 2003, Carter went to Chans Market to purchase crackers.[1] The market sells food products, including crackers, to the general public. Joseph Shane, also known as Joseph Chan, was employed by Chans Market as a clerk. Shanes duties included waiting on and assisting customers.

Carter approached Shane, who was kneeling on the floor stocking items. Shane grabbed Carters crotch causing her to scream and flee the scene.

Carter sued Shane and Chans Market seeking damages for assault, battery, and intentional infliction of emotional distress. Chans Market answered the complaint generally denying the allegations and asserting 11 affirmative defenses, including that any foreseeable and unreasonable risk of personal injury was a risk that defendant did not create or could not reduce or eliminate.

With the case at issue, Chans Market moved for summary judgment on the ground, there being no dispute of fact, that it was entitled to judgment as a matter of law because there was no causal nexus between Carters injuries and Shanes work. In support of its motion, Chans Market submitted eight facts relying largely on allegations from Carters complaint.

Carter disputed only two of the eight material facts. Chan had asserted as its fact number seven that While [Carter was] negotiating the purchase, Shane squeezed Carters private parts causing her to scream and flee the scene. This assertion was derived nearly verbatim from Carters complaint. In demonstrating a dispute about this fact, Carter cited her deposition testimony where she explained the events more fully: The owner of the store . . . told him to get me out of that store. . . . [T]hats when he grabbed my crotch. She also cited her interrogatory response that owner Yoo told Shane that Carter was a problem and Shane acted on the statement.

Chans Markets fact number eight asserted that Shanes conduct was willful and malicious and criminal. This fact, too, was mostly derived from Carters complaint. To demonstrate a dispute about this fact, Carter pointed to the same excerpts from her deposition testimony and interrogatory response, explaining that Shane was acting under the direction and instruction of [his] business owner and employer. She again relied on her deposition testimony and an interrogatory response as evidence.

The trial court granted Chans Markets summary judgment motion. The court recited the facts above described, and in particular that Shane was asked by Young J. Yoo, a manager of Chans Market to escort Carter out of the store. The court also recited that Joseph Shanes conduct was willful and malicious and criminal. Based on these facts, the court ruled that the assault, battery, and infliction of emotional distress had no causal nexus to Shanes work. Carters timely appeal followed.

DISCUSSION

1. Standard of review

Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial courts decision to grant [defendants] summary judgment de novo. [Citation.] [Citation.] An appellate court is not bound by the trial courts stated reasons, if any, supporting its ruling; we review the ruling, not the rationale. [Citation.] (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)

In summary judgment, the issues are framed by the pleadings. (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 750.) In moving for summary judgment, [a] defendant or cross-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. (Code Civ. Proc.,  437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Once the moving party defendant meets its burden, the burden shifts to the plaintiff to show a triable issue of material fact exists. (Code Civ. Proc.,  437c, subd. (p)(2).) To meet that burden, the plaintiff   shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .  [Citations.] Where the plaintiff fails to satisfy this burden, judgment in favor of the defendant shall be granted as a matter of law. [Citation.] (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014.)

Our task is to view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [Carters] evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in [Carters] favor. [Citations.] (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th763, 768-769.) Summary judgment will be upheld when, viewing the evidence in a light most favorable to the opponent, the evidentiary submissions conclusively negate a necessary element of plaintiffs cause of action, or show that under no hypothesis is there a material issue of fact requiring the process of a trial. [Citation.] (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024.)

2. A triable factual issue exists to preclude summary judgment

Under the doctrine of respondeat superior in California, an employer is vicariously liable for the torts of its employees that are committed within the scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.).) An employer is liable for an assault and battery committed by an employee where the employment in some way involves the risk of force used against third persons, the act is connected with the employment, and the act is not motivated by independent personal malice. (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment,  186, p. 237.) To fall within the scope of employment, the conduct must have a causal nexus to the employees work. (Lisa M., supra, at p. 297.)

Causal nexus occurs when the conduct is engendered by or arise[s] from the work (Lisa M., supra, 12 Cal.4th at p. 298) or when the conduct results or arises from pursuit of the employers interests. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005.) That is, employers will be held liable for the  wrongful acts  of employees committed  in and as a part of the [employers] business (Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 654), or when the conduct is an outgrowth of the employment, when the risk of injury is   inherent in the working environment,   or when it is   typical of or broadly incidental to the enterprise   (Lisa M., supra, at p. 298, citing Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652 & Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960), such as when the motive for the conduct arises from work-related events or conditions. (Lisa M., supra, at p. 301.)

The tortious occurrence must be a generally foreseeable consequence of the activity.  (Lisa M., supra, 12 Cal.4th at p. 299, quoting from Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618.) Foreseeability merely means that in the context of the particular enterprise an employees conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employers business. [Citations.] (Lisa, supra, at p. 299.) The Lisa M. court found this Rodgers foreseeability test to be useful because it reflects the central justification for respondeat superior [liability]: that losses fairly attributable to an enterprise-‑those which foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business. [Citation.] (Ibid.)

Stansell v. Safeway Stores, Inc. (1941) 44 Cal.App.2d 822 is analogous and helpful. Stansell held that the defendant grocery stores manager was acting in the scope of his employment when he argued with and injured a 14-year-old customer over an order and subsequent name-calling. (Id. at p. 825.)

By contrast, in Lisa M., the Supreme Court held that a hospital was not vicariously liable for the conduct of an ultrasound technician who sexually assaulted a patient. The Lisa M. court held that the technicians conduct was unrelated to his duties and hence was unforeseeable. (Lisa M., supra, 12 Cal.4th at pp. 299, 301, 303, 306.)

Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible.   (Lisa M., supra, 12 Cal.4th at p. 299.)

The allegations in a complaint do not, at trial, constitute evidence of the truth of the allegations made therein [citation], and a party cannot rely on its own pleadings as evidence to support or oppose a summary judgment motion. [Citations.] (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 241.) Chans Market here relied on the allegations in Carters complaint as judicial admissions. In opposing the summary judgment motion, Carter could not rely upon the allegations in her complaint to show that a triable issue of material fact existed. Instead, she was obligated to produce acceptable evidence (Code Civ. Proc.,  437c, subds. (b)‑(d)) that   set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  [Citation.] (Code Civ. Proc., 437c, subd. (p)(2).) Her submission, in the form of deposition testimony and interrogatory responses, presented extrinsic facts that do not contradict her complaint, but rather flesh out and expand on its allegations. In so doing, Carters deposition testimony and interrogatory responses highlight a triable factual issue about Shanes motivation for grabbing Carters crotch and the causal nexus between this act and his employment. Whether Shane was acting at the behest or direction of his employer so that his conduct was an outgrowth of his employment, as in Stansell, or was instead a substantial deviation from those duties and unforeseeable as in Lisa M., is a factual question that cannot be resolved by summary judgment. (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 485.)

Just as in Stansell v. Safeway Stores, Inc., supra, 44 Cal.App.2d at page 826, here Shane was on duty at all times. He was asked by his employer to remove Carter from the store, and responded immediately to his employers request by grabbing Carter. Although his work involved waiting on and assisting customers, as well as stocking food, the fact that his employer asked him to remove Carter suggests that removing customers was also connected with his work, rather than being a departure from the line and scope of his employment[.] (Ibid.) Where the matter is a question of fact, there was a triable issue about whether the tortious battery resulted, in part, from Shanes diligence in performing his duty as a clerk for Chans Market. Here, a factual question arises about whether, in the words of the Stansell court, Shanes unwarranted action not only immediately grew out of the manner in which he was performing his duty to his employer, but was in a very real sense a part thereof and not a departure therefrom. (Ibid.)

We are mindful that we are reviewing a summary judgment. As noted, the issues to be addressed by a summary judgment motion are framed by the pleadings. (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at p. 750.) Carters complaint alleges assault and battery, not sexual assault. The elements of a civil battery are:  1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiffs person; [] 2. Plaintiff did not consent to the contact; [and] [] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.  [Citation.] (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.) Because Carters complaint alleges assault and battery, what is relevant is not the body part that Shane grabbed so much as the fact that Shane intentionally made harmful or offensive contact with Carter. There is a triable issue about whether Shanes conduct of grabbing some part of Carters body when his employer asked him to remove her from the store fell within the scope of his employment. (Lisa M., supra, 12 Cal.4th at p. 299.)

Turning to whether Shanes conduct was willful, intentional, and criminal, the trial court appears to have made a finding that it was. Such a finding is inappropriate in resolving summary judgment motions. (See Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1448 [on summary judgment, trial courts function is not to find facts, but to determine whether triable issues of fact exist].) More important, however, is that fact is not dispositive. Even an employees intentional torts can fall within the scope of employment. (Lisa M., supra, 12 Cal.4th at pp. 296-297.) Thus, even if Shanes conduct were intentional, that does not affect the pivotal issue whether he was acting at the direction of his employer. Stated otherwise, regardless of whether Shane was acting maliciously or intentionally as alleged, or even criminally, Chans Market may be liable for the damage he caused to Carter if his acts were engendered by or ar[ose] from the work. (Id. at p. 298.)

DISPOSITION

The judgment is reversed. Appellant shall recover costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] Chans Market is owned in equal shares by Myong Kim and Young Yoo.