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Phillips v. TLC Plumbing

April 3, 2009

TRISHA PHILLIPS, PLAINTIFF AND APPELLANT,
v.
TLC PLUMBING, INC. ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed. (Super. Ct. No. GIC865882).

The opinion of the court was delivered by: McDONALD, J.

CERTIFIED FOR PUBLICATION

Plaintiff Trisha Phillips (Plaintiff) appeals a summary judgment entered in favor of defendants TLC Plumbing, Inc., (TLC) and Thad L. Condon (together Defendants).*fn1

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 co-worker.

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.*fn2 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. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "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 (Aguilar).)

Aguilar clarified the standards that apply to summary judgment motions under Code of Civil Procedure section 437c.*fn3 (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' " (ยง 437c, subd. (c)), the court must ...


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