Stump vs. Viking Security Services Inc.

Here, if Moving Party is successful in meeting its initial burden, the burden then shifts to plaintiff to produce evidence to raise a triable issue of fact as to why the Moving Party should be liable for plaintiff’s injuries.

To meet its burden, AJP will have to demonstrate the absence of a triable issue of material fact on the key elements of duty, assumed duty, and negligent hiring. The analysis turns primarily on whether the AJP voluntarily assumed a duty to protect patrons by hiring security, and whether it exercised reasonable care in doing so.

Merits

Here, the starting point is that a restaurant owner is generally not vicariously liable for the torts of an independent contractor. A person who hires an independent contractor to perform work is generally not liable to third parties for injuries resulting from that work. Privette v. Superior Court (1993) 5 Cal.4th 689. This general rule of hirer nonliability provides the foundation for a restaurant owner’s summary judgment motion.

The most significant obstacle to summary judgment for AJP is the doctrine of assumed duty. Once a restaurant voluntarily hires a security guard to protect its patrons, it assumes a duty to protect those patrons from criminal attack, and the issue of foreseeability becomes irrelevant. The Irvine Co. LLC v. Superior Court (2023) 96 Cal.App.5th 858.

To successfully move for summary judgment, the restaurant owner must negate at least one essential element of the patron’s claim. The key showings are: 1. No breach of the assumed duty — the security team acted reasonably under the circumstances 2. No causation — the security team’s conduct was not a substantial factor in causing the patron's injuries 3. The assault occurred outside the scope of the assumed duty (e.g., off the restaurant’s premises)

A restaurant owner may also face direct liability for negligent hiring or supervision of the independent contractor security firm. The employer of a security guard may be liable for the guard’s assaults if the employer negligently hired the guard or negligently placed the guard in a position to commit foreseeable harmful acts. Hawkins v. Wilton (2006) 144 Cal.App.4th 936. To prevail on summary judgment against this theory, the restaurant owner must show there was no evidence of prior unfitness or dangerous propensity known or knowable to the owner, and that the owner exercised reasonable care in selecting the security contractor.

The restaurant owner's knowledge of prior incidents of excessive force by the same security company is a critical factor. A proprietor may be held liable for its own negligence in retaining a guard whose dangerous propensities were known. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224.

Here plaintiff has offered evidence that AJP had once retained Viking’s services but terminated them. Viking was then rehired, but AJP at the time it rehired Viking, knew that Viking previously, on more than 10 occasions, physically grabbed patrons. (See AMFs 30, 32, 34; Ex. 1, Petrossian Depo. 53:16-19, 54:5–11, 54:24-55:10; Ex. 1, Petrossian Depo. 57:6–57:8; Ex. 1, Petrossian Depo. 57:9 18; Ex. 1, Petrossian Depo. 19:12-21; Petrossian Decl. ¶ 15.)

Where the restaurant knew of prior incidents of excessive force by the same security company — even if those incidents occurred a couple of years earlier — that knowledge goes directly to the foreseeability of harm and the reasonableness of continuing to retain that company. Prior incidents of violence on premises give rise to heightened foreseeability. Lopez v. Baca (2002) 98 Cal.App.4th 1008.

The employer's awareness of a contractor's dangerous propensities triggers a duty to act, and failure to terminate or supervise the security company in light of that knowledge

supports a finding of negligent retention. The use of excessive force by a security guard is unquestionably engendered by the guard’s employment, as courts have found employers vicariously liable where an employee security guard’s use of force was for the purpose of performing his employment duties. Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472.

In addition, Stump has introduced evidence that the actions of Viking on the night of the incident, were taken at the direction of the server, Jordyn Sparks. (AMF #47.; Ex. 1, Petrossian Depo. 24:11-25:19 (Sparks opened a tab for the table); 26:2-4 (tab was still open when incident occurred); 26:5–17 (server's direction to security); 26:18–27:2 (credit card on file); 28:10-14 (tab still open when incident occurred); Ex. 2, Koch Depo. 31:5-12; 85:16-86:23 (security received the information from a server/La Vida server Jordyn Sparks).) That evidence creates a triable issue of fact with regard to whether AJP may be liable for Stump’s injuries.

First, the instruction itself may eliminate the independent contractor defense. When an employee of the restaurant directs the independent contractor security team to take specific action, this creates an issue of control that undermines the independent contractor relationship. The hirer of an independent contractor is generally not liable for the contractor's negligent torts except where the hirer exercised control over them. Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th1097. A server’s direct instruction to detain a specific customer for a specific reason could constitute sufficient control to trigger liability.

Second, the restaurant could face vicarious liability under respondeat superior if the server was acting within the scope of her employment when she gave the instruction. Employers can be vicariously liable for employee conduct that occurs within the scope of employment. Borg-Warner Protective Services Corp. v. Superior Court (1999) 75 Cal.App.4th 1203. A server

instructing security to address an unpaid bill would likely be considered within the scope of her employment duties, as she would be acting to protect the restaurant's financial interests. The restaurant would then be liable for any false imprisonment or excessive force that resulted from her instruction, even if carried out by independent contractors.

Finally, even if the security team qualifies as an independent contractor, the restaurant’s voluntary assumption of a duty to provide security creates obligations to patrons. The restaurant assumed a duty when it hired security guards, and this duty extends to ensuring that security functions are performed reasonably. Delgado v. Trax Bay & Grill, supra. If the server’s instruction led to an unreasonable detention or injury, the restaurant could be liable for negligently directing or supervising the security undertaking.

In sum, there are triable issues of fact as to whether AJP’s actions in hiring and retaining Viking were reasonable. There are also triable issues of fact as to whether AJP may be liable under vicarious liability or a respondeat superior theory for the acts of its server.

RULING:

Defendant AJP Mexican Bar LLC dba La Vida Cantina’s motion for summary judgment as to the complaint of Johathan Stump is DENIED.

AJP met its initial burden of showing Stump could not prevail on his claim for negligence, but Stump has met his now shifted burden raising a triable issue of fact. See C.C.P. § 437c (p) (2), and Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287.

Specifically, there are triable issues of fact as to UMFs 9, 12, 15, 20 and Stump’s additional material facts 24, 30, 32, 34, 40, 41, 44, 45, 46, 47, 48, 49, 52, 53, 54, 55, 56, 57, 60.

Stump’s objections to the declaration of Alex Petrossian are overruled.

AJP Mexican Bar’s objections to plaintiff’s evidence are overruled.

AJP Mexican Bar LLC’s request for judicial notice is granted.

Moving Party shall give notice.