California Court of Appeal, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County, Steven Denton, Judge. Affirmed. (Super.Ct. No. 37-2012-00090137-CU-PO-CTL)
The Law Offices of Samuel Dagan, Samuel Dagan, San Diego, and Lisa Dearden Trepanier for Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport, Pasadena; Susson, Parrett [168 Cal.Rptr.3d 125] & Odell, Steven R. Odell, Irvine, and Edward L. Schumann, Redlands, for Defendants and Respondents.
In this case, a staffing company hired an employee to work as a medical assistant and then assigned that employee to work at a customer's facility. While at the customer's facility, the employee poisoned a coworker. The coworker sued the staffing company alleging theories of vicarious liability and negligence. We conclude the trial court properly granted summary judgment in favor of the staffing company because the employee acted outside the course and scope of her employment.
FACTUAL AND PROCEDURAL BACKGROUND
AMN Healthcare, Inc., dba Nursefinders (Nursefinders) is a staffing company that provides prescreened nurses and medical personnel to hospitals and other facilities. Nursefinders hired Theresa Drummond as a medical assistant. It later assigned Drummond to work at a Kaiser facility as a medical assistant. Plaintiff Sara Montague was also a medical assistant at Kaiser. At some point, Drummond and Montague had a disagreement at work regarding how rooms were to be stocked. At the end of the discussion Montague walked away. Montague did not consider the argument serious enough to report to a supervisor or anyone else. They also had a discussion regarding misplaced lab slips where Drummond raised her voice. A few weeks after that discussion, Montague left her water bottle at work. Montague later drank from her water bottle. Her tongue and throat started to burn and she vomited. Drummond admitted that she poured carbolic acid found in a Kaiser examination room into Montague's water bottle.
Montague and her husband sued Drummond and Nursefinders. As to Nursefinders, she alleged causes of action for negligence, battery, negligence per se and intentional infliction of emotional distress under a theory of respondeat superior. She also alleged that Nursefinders negligently hired, retained, supervised and trained Drummond. Montague's husband alleged a claim for loss of consortium.
Nursefinders moved for summary judgment or in the alternative, summary adjudication of all causes of action, arguing that the causes of action based on respondeat superior liability fail because Drummond (1) was a special employee of Kaiser, or (2) acted outside the course and scope of her employment. It also asserted that no triable issues existed on Montague's negligence claim and the lack of a viable cause of action precluded a derivative loss of consortium claim.
The trial court tentatively granted the motion, finding the claims based on respondeat superior liability failed because undisputed evidence established that Drummond was a special employee of Kaiser. It also concluded that Montague did not establish a triable issue of fact regarding negligent hiring, retention or supervision and that her claim regarding negligent training failed based on lack of causation. The court entered a judgment in favor of Nursefinders and Montague timely appealed contending triable issues of material fact precluded summary judgment.
I. Standard of Review
A motion for summary judgment is properly granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter [168 Cal.Rptr.3d 126] of law. (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo and decide independently whether the undisputed facts warrant judgment for the moving party. ( Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348, 1 Cal.Rptr.3d 32, 71 P.3d 296.) When analyzing the underlying motion, we apply the same three-step analysis used by the trial court. ( Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431-1432, 128 Cal.Rptr.2d 31.) We identify the issues framed by the pleadings, determine whether the moving party ...