Filed 3/18/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

COLONIAL VAN & STORAGE,

INC.

Petitioner,

v.

THE SUPERIOR COURT OF

FRESNO COUNTY,

Respondent;

CRYSTAL D. DOMINGUEZ et al

.,

Real Parties in Interest. No. B317125

(Fresno County Super. Ct.

Nos. 18CECG00586,

18CECG02656)

ORIGINAL PROCEEDINGS in mandate. Kristi Culver Kapetan,

Judge of the Superior Court of Fresno County. Petition granted.

Horvitz & Levy, Mitchell C. Tilner

, Mark A. Kressel; Bremer

Whyte Brown & O’Meara, Keith G. Bremer, Karen M. Baytosh and

August B. Hotchkin for Petit i oner Colonial Van & Storage, Inc.

No appearance for Respondent.

Marderosian & Cohen, Michael G. Marderosian

, Heather S.

C ohen; Law Offices of Frank M. Nunes and Frank M. Nunes for Real

Party In Interest Crystal D. Domin g uez

.

Haffner Law

, Joshua H. Haffner and Graham G. Lambert for

Real Parties In Interest Rachel Schindler et al

.

________________________________________2 A young man suffering from a mental health condition suddenly

fired a handgun at family members and guests inside his family home.

Among the injured were his mother’s coworker and a business

associate, who were b oth involved in work

- related activities with the

mother and stepfather at the time

. An employer has an affirmative

duty to provide employees with a safe place to work. ( Lab. Code,

§ 6400, subd. (a); Seabright Ins. Co. v. US Airways, Inc. (2011) 52

Cal.4t h 590, 603

. ) Does this duty include ensuring that an off

- site

meeting place for coworkers and business associates like an employee’s

private residence is safe from third party criminal harm? We hold the

answer is “ N o.” 1 In light of our holding, we grant the writ petition

challenging the court’s order denying the summary judgment motion in

this case and direct the trial court to enter a new and different order

granting summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I

. The Shooting

Colonial Van & Storage, Inc. (Colonial) is a moving and storage

company in Fresno that services California and Nevada. Colonial

recognized in its E mployee H andbook that workplace violence is “a

growing nationwide problem necessitating a firm

, considered r esponse

by employers.” As part of its workplace antiviolence policy, Colonial

enumerated behaviors that may constitute workplace violence if they

involved Colonial employees on and off Colonial premises. The

handbook further stated that workplace violenc e “w ill not be tolerated”

and offenders would be immediately removed from Colonial premises

and face possible disciplinary action following an investigation.

1 I n a separate order, we granted the motion to strike e xhibit

N o. 3 filed in this court under seal in opposition to the writ petition.

Because the exhibit under seal was not introduced in the trial court, it

is not part of the record in this proceeding

. ( M ission Imports

, Inc. v.

Superior Court (1982) 31 Cal.3d 921, 927

, fn. 5; Pomona Valley Hospital

Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, 835,

fn. 5.) Accordingly, we do not consider it.3 Carol Holaday (Holaday) and her husband Jim Wil l coxson 2

(Wil l coxson) were employed by Colonial. Holaday was a supervisor and

a long

- haul dispatcher. She typically worked at Colonial’s Fresno office

but was authorized to work at home at her discretion. Holaday often

had coworkers visit her home for social and work

- related reasons.

Wil l coxson was a Colonial sales representative. His job entailed

traveling to various places and making telephone calls.

Kyle Holaday (Kyle) was unemployed and had been residing with

his mother and Wil l coxson for approximately two years

. He was 26

years old, a veteran of the Iraq and Afghanistan wars, and suffered

from p ost t raumatic s tress d isorder (PTSD) for which he was receiving

outpatient treatment

. Kyle had a history of self

- harm and misuse of

firearms. He frequently left loaded guns around the home and shot

birds and rodents on one occasion.

Crystal Dominguez 3 ( Dominguez ) was a Colonial employee and

worked with Holaday at the Fresno office. She was a frequent visitor to

Holaday’s home and considered Kyle a friend.

Rachel Schindler (Schindler) was employed by another moving

company that worked with Colonial. She knew Holaday in a business

capacity and had been to her home a few times. Schindle r had only

briefly met Kyle.

On the evening of March 24, 2017, Holaday and Wil l coxson

hosted a dinner in their Fresno home for Dominguez and Schindler

.

Schindler brought her five

- month

- old daughter with her

. The four

adults were socializing, but also ne tworking and engaged in job

- related

tasks. Kyle was present at the time. After acknowledging the arriving

guests, Kyle sat in the living room and looked at his cell phone.

2 T he surname of Holaday’s husband is also spelled as

“Wil coxson.” For consistency, we use the Wil l coxson spelling in the

superior court exhibits.

3 W e spell her surname as Dominguez in conformity with the

spelling she gave at Kyle’s preliminary hearing. However, her surname

is spelled inconsistently as “ Dominquez ” throughout the record.4 At one point Wil l coxson went into the kitchen while the three

women talked in the living room. Without speaking, Kyle left the living

room and returned with a handgun and began firing. He shot and

killed Wil l coxson and a family dog and wounded Holaday, Dominguez

,

and Sch indler. A bullet grazed the baby’s ear. Kyle fled from the home

and was struck by a moving car when he ran into the street. Police

arrived and arrested him. 4

II

. The Lawsuit s

Dominguez and Schindler (collectively plaintiffs) each filed a

lawsuit again st Colonial and Holaday for personal injury damages.

Dominguez’s operative complaint alleged causes of action for negligence

and intentional infliction of emotional distress against Colonial and

Holaday and negligent supervision against Holaday alone. As to all

causes of action, Dominguez alleged Colonial was vicariously liable for

Holaday’s misconduct pursuant to the doctrine of respondeat superior.

Schindler’s separate complaint filed on behalf of herself and her

baby daughter pleaded the same causes o f action against Colonial and

Holaday, alleging substantially the same allegations

. The two lawsuits

were later consolidated.

III. The Summary Judgment Motion

Colonial moved for summary judgment on plaintiffs’ direct

negligence claim for lack of duty because Colonial did not own, possess

, or control the home where the shooting occurred

, and on all claims

because the shooting was an unforeseeable event.

Plaintiffs filed opposition. As to the claims of direct negligence

and intentional infliction of em otional distress against Colonial,

plaintiffs asserted there were triable issues whether Colonial owed

plaintiffs a duty to protect because Colonial controlled the home where

4 K yle ultimately pleaded no contest to one count of murder,

three counts of attempted murder, and one count of anima l cruelty.

The superior court found Kyle was legally insane at the time of the

offenses and commented that Kyle’s acts were “inexplicable,”

“irrational

, ” and “without warning.” The court sentenced him

accordingly.5 the shooting occurred; Colonial knew or should have known of the

dangers Kyle pos ed and the corresponding risks associated with using

the home as a work site. Both plaintiffs also contended there were

triable issues whether Colonial was vicariously liable for Holaday ’s

alleged negligent and intentional misconduct under the doctrine of

respondeat superior.

Following a hearing, the trial court denied summary judgment

finding as disputed facts: (1) the extent to which Colonial employees

performed work in Holaday’s home; (2) the purpose of Dominguez ’s

presence at the home on the evening of the shooting; (3) how long Kyle

had lived at the home; and (4) whether plaintiffs were friends with

Kyle. The court entered its order denying the motion on July 23, 2020.

IV

. The Writ Petition

On August 21, 2020, Colonial filed a petition for writ of mandate

urging the Fifth District Court of Appeal to vacate the trial court’s

order denying the motion for summary judgment and enter a new order

granting summary judgment

. 5 After receiving opposition from

plaintiffs and a reply in support of Colonial’s petition, the appellate

court issued an order to show cause why the relief requested in the

petition should not be granted

. 6

DISCUSSION

I. The Propriety of Writ Review

“ [ W] rit review is appropriate only when (1) ‘ the remedy by appeal

would be inadequate ’ [citation] or (2) the writ presents a ‘ significant

issue of law ’ or an issue of ‘ widespread ’ or ‘ public interest

. ’ ” ( California

Dept. of Tax & Fee Administration v. Superior Court (2020) 48

Cal.App.5th 922, 929.) Writ review is appropriate in this case because

an order denying a summary judgment motion is not appealable ( s ee

5 C odefendant Holaday is not a party to this writ proceeding.

6 A fter Domin guez filed a return, the California Supreme Court

transferred the case from the Fifth District Court of Appeal to the

Second District Court of Appeal for decision. Schindler has also filed a

return.6 Code Civ. Proc.

, § 904.1, subd. (a)) and Colonial’s petition presents an

issue of law that is of paramount importance to public welfare during

the current Covid

- 19 pandemic: W hether a n employer has a duty to

ensure that off

- site work locations are safe from third party criminal

conduct. 7

II

. Summary Judgment

“ A defendant is entitled to summary judgment if it can ‘ show that

there is no triable issue as to any material fact. ’ [Citation.] The

defendant bears the initial burden of establishing that the plaintiff ’ s

cause of action has ‘ no merit ’ by showing that the plaintiff cannot

establish ‘ one or more elements of [ the ] cause of action. ’ [Citation.] If

this burden is met, the ‘ burden shifts ’ to the plaintiff ‘ to show that a

triable issue of one or more material facts exists as to the ca use of

action. ’ ” ( Issakhani v. Shadow Glen Homeowners Assn.

, Inc. (2021) 63

Cal.App.5th 917, 924

, fn. omitted

. )

We review the denial of a motion for summary judgment de novo

,

and thus do not defer to the trial court’s rulings or reasoning

. ( Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 560 ; Burg u eno v.

Regents of University of California (2015) 243 Cal.App.4th 1052, 1057.)

III. Plaintiffs’ Direct Negligence Claim Against Colonial

To establish a cause of action for negligence, a plaintiff must

allege facts showing a legal duty to use due care, breach of the duty,

causation, and damages. ( Kesner v. Superior Court (2016) 1 Cal.5th

1132, 1158.) Duty is a threshold issue, a question of law for the court,

and reviewed de novo on appeal. ( Id. at p. 1142.) E very person has a

duty in his or her activities to exercise reasonable care for the safety of

others. (Civ. Code

, § 1714, subd. (a).) Yet this duty “is not absolute” ; a

defendant does not necess arily owe every plaintiff a duty of care.

( Brown v. USA Taekwondo (2021) 11 Cal.5th 204

, 21 5

. ) Generally,

7 Plaintiffs also contend the writ petition should be summarily

denied in light of the trial court’s denial of Colonial’s summary

judgment motion on procedural as well as substantive grounds.

However, plaintiffs have cited no authority that precludes us on

jurisdictional grounds from reviewing the merits of this writ petition.7 “ ‘one owes no duty to control the conduct of another, nor to warn those

endangered by such conduct.’ ” ( Regents of University of California v.

Superior Court (2018) 4 Cal.5th 607, 619; accord, Delgado v. Trax Bar

& Grill (2005) 36 Cal.4th 224, 235 [“as a general matter, there is no

duty to act to protect others from the conduct of third parties”].)

Plaintiffs argue Colonial’s summary judgment motion was

properly denied. Their arguments advance two reasons the no

- duty

- to

protect rule is inapplicab le here: (1) Colonial owed both plaintiffs a

duty to protect. Plaintiffs’ theory i s that Colonial had an affirmative

duty to protect them because Colonial controlled the home where the

shooting occurred and Kyle’s harm was foreseeable

. (2) A special

rel ationship between Dominguez and Colonial gave rise to Colonial’s

duty to protect. Dominguez theorized her employer

- employee

relationship with Colonial required a finding of liability premised on

Holaday’s negligent and intentional misconduct.

For both th eories, plaintiffs must also show that imposing a duty

on Colonial in these circumstances is warranted under the Rowland

factors ( Rowland v. Christian (1968) 69 Cal.2d 108 , 113 ( Rowland ) ). In

other words, if imposed, the boundaries of that duty encompassed the

burden to protect them against a once

- in

- a

- lifetime shooting rampage.

Our analysis of cases relating to plaintiffs’ theories and the

Rowland factors lead s us to the conclusion that a n employer does not

have a duty to protect working

- at

- home employee s from third party

criminal conduct as a matter of law.

A. Colonial Owed No Duty To Protect Plaintiffs

Because Colonial Did Not Control Holaday’s

Home

A defendant ’ s control over property is sufficient to create a duty

to protect owed to persons using the property

. ( Alcaraz v. Vece (1997)

14 Cal.4th 1149, 1162, 1166; accord, Soto v. Union Pacific Railroad Co.

(2020) 45 Cal. A pp.5th 168, 177 [ “ the rationale being that whoever has

the means to control the property can take steps to prevent the harm ”].)

Conversely, absent any control of the property, a defendant cannot be

held liable for a dangerous condition on that property. ( Cody F. v.8 Falletti (2001) 92 Cal.App.4th 1232, 1241 [ “ ‘[t]he law does not impose

responsibility where there is no duty because of the absence of a right

to control ’ ” ] ; accord, Soto v. Union Pacific Railroad Co.

, at p. 177;

Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084

[generally, there is no right to control another’s property].)

In support of its summary judgment motion, Colonial presented

evidence that it did not own, possess

, or control the home where the

shooting occurred; the home was Holaday’s private residence.

Plaintiffs d o not dispute Colonial’s lack of ownership and possession,

but they contend there was a triable issue whether Colonial controlled

the property, thus creating a duty to protect. Plaintiffs also argue

Colonial exerc ised control of the home by enjoying a commercial benefit

from its use as a work site.

1. Colonial did not engage in behavior

commensurate with controlling the home

When it comes to property, “ ‘ control ’ ” is defined as the “ ‘ power

to prevent, remedy or guard against the dangerous condition. ’ ” ( P ublic

Utilities Com. v. Superior Court (2010) 181 Cal.App.4th 364, 378; Low

v. City of Sacramento (1970) 7 Cal.App.3d 826, 833

– 834.) This involves

a “ ‘ dramatic assertion of a right normally associated with ownership or

at least

. . . possession ’ ” of the subject property ( Contreras v. Anderson

(1997) 59 Cal.App.4th 188, 20 0 ) or “ undertaking affirmative acts that

are consistent with being the owner or occupier of the property ” ( Lopez

v. City of Los Angeles (2020) 55 Cal.App.5th 244, 258)

. Accordingly,

defendants have been found to control property in which they have no

legal interest by taking some overt action directed at the property to

modify or improve it beyond simple upkeep. Fo r example, constructing

a fence around the property ( Alcar a z v. Vece , supra , 14 Cal.4th at

pp. 1161

– 1162); erecting a N eon sign to illuminate the property

( Johnson v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 401);



### install ing sprinklers, plant ing trees

, and maintain ing the property

( Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320,

1 3 35); or mowing and watering the property, removing debris

, and9 repairing any holes in the grassy surface ( Low v. City of Sacramento,

supra, 7 Cal.App.3d at pp. 830, 834).

On the other hand, defendants were found not liable for slip and

fall injuries sustained on public sidewalks abutting their property

caused by third parties having deposited dog feces ( Se l ger v. Steven

Bros. (1990) 222 Cal.App.3d 1585 , 1591

– 1592 ), or rubbish and other

detritus ( Bolles v. Hilton & Paley, Inc. (1931) 119 Cal.App.126, 127

–

128; accord

, Lopez v. City of Los Angeles, supra, 55 Cal.App.5th at

p. 258)

. The rationale being that in those instances the defendants did

not exert sufficient control over the property by effectively treating it as

their own to warrant imposition of a duty of care. ( Lop ez , at p. 256.)

The record contains no evidence suggesting Colonial directed or

engaged in some overt acts with respect to the home associated with

business ownership. For example, there was no evidence that Colonial

set specific hours for the employees to work in the home, provided or

paid for landscaping or a security system

, designated the home as a

business location for insurance and tax purposes, or named the home as

an extension of its business in any in

- house documents or

communications with outside businesses.

Further, California courts have declined to impose a duty to

protect for tortious or criminal harm committed by third parties on

property that defendants, like Colonial, did not actually own, possess

, or control. (See

, e.g.

, Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d

799, 805

– 806 [shopping center oper ator was not liable for injuries

sustained by child who was struck by a car after running into a public

street during a carnival at the shopping center]; Steinmetz v. Stockton

City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1144, 1146

–

1147 [business h osting a mixer was not liable for murder of a guest who

was fatally stabbed returning to her car in an off

- premises parking lot

that the business did not own, possess, or control]; Owens v. Kings

Supermarket (1988) 198 Cal.App.3d 379, 385

– 387 [grocery store was

not liable for injuries to a customer struck by a car while on a public

street adjacent to store]; Martinez v. Pac ific Bell (1990) 225 Cal.App.3d

1557, 1561

– 1562 [telephone company was not liable for p arking10 attendant’s injuries sustained in an attack by criminals attracted to the

parking lot by a public phone booth located on adjacent property].)

2. Deriving a commercial benefit from the

use of the home does not create a duty to

protect

In sup port of their theory that Colonial controlled the home

where the shooting occurred, plaintiffs rely on Southland Corp. v.

Superior Court (1988) 203 Cal.App.3d 656 ( Southland Corp .). The

issue in Southland Corp . was whether a convenience store was liable

for third party criminal harm that occurred on adjacent property in

which the store had no legal interest. A store customer was assaulted

in a vacant lot typically used for customer parking that was neither

owned nor leased by the store. ( Id. at p

. 660.) The Court of Appeal

concluded there was a triable issue whether the store controlled the

vacant lot, and thus owed the injured customer a duty to protect. ( Id.

at p. 661.) The court explained a customer’s perception that the lot was

controlled b y the store “may not have been unreasonable” ( ibid .)

because the store “realized a significant commercial benefit” from its

use of the lot for parking ( id. at p. 667)

.

In Alcaraz v. Vece

, supra, 14 Cal.4th 1149, our Supreme Court

traced the origin and use of “ ‘ commercial benefit ’ ” in earlier appellate

court decisions that addressed a defendant’s liability for injuries

incurred on nearby property in which the defendant held no legal

interest. ( Id. at pp.1163

– 1166.) Among the cases the c ourt examined

was Southland Corp. ( Alcar a z

, at pp. 1163

– 1164.) In brief, the c ourt

concluded that in each of those cases, including Southland Corp.

, deriving a commercial benefit was not the “dispositive” factor relating

to t he issue of defendant’s control. ( Alcaraz, at p. 1163; see Lopez v.

City of Los Angeles

, supra, 55 Cal.App.5th at p. 263.) Indeed, in its

opinion, the Southland Corp . court pointed to other factors indicating

the store may have treated the vacant lot as its own. Among them,

that the store manager had taken steps to remove loiterers from the lot

by demanding that they leave or calling the police. ( Southland Corp.

,

su pra, 203 Cal.App.3d at p. 661.) In other words, the store11 dramatically asserted a right normally associated with property

ownership.

More recently, we considered, albeit in a different factual context,

this same deriving

- a

- commercial

- benefit argument, noting it

“effectively makes commercial benefit the sole predicate for the

imposition of a duty of care.” 8 ( Lopez, supra, 55 Cal.App.5th at p. 263.)

Tracing our reasoning in Lopez , we conclude plaintiffs’ proposed

definition of control , apart from being contrary to precedent, would

mean that every employer would be absolutely liable for any injury

suffered at home by working

- at

- home employee s. ( Ibid. ) To avoid

liability, employers would have the onerous task of ensuring these

employees maintained the safety of their private residences and the

mental health of their fellow residents and invitees. We reject

plaintiffs’ “ invitation to distort the recognized princi ples of premises

liability or negligent management of property by such means .”

( Martinez v. Pac ific Bell , supra, 225 Cal.App.3d at p. 1563.)

B. Colonial Owed Dominguez No Duty To Protect

Based on the Employer

- Employee Relationship

A defendant may have an affirmative duty to protect the plaintiff

from harm by a third party “even though the risk of harm is not of the

defendant’s own making,” if a special relationship exists. ( Brown v.

8 I n Lopez , we affirmed the trial court’s order granting judgment

notwithstanding the verdict after a jury found a business partially

liable for an injury to plaintiff, a pedestrian, who stepped in a pothole

located on abutting city

- owned property where the lip of a driveway

and the sidewalk gutter met. ( Lopez v. City of Los Angeles, supra, 55

Cal.App.5th at pp. 250

– 251.) We concluded the duty to exercise care to

maintain property in a safe condition did not obligate the business to

repair the pothole. The business did not exercise control merely by

putting the driveway and gutter to their ordinary uses. ( Id. at pp. 259

–

2 61.) We rejected the position that the business had de facto control

over the area because the commercial benefit it derived from the

driveway and gutter was not dispositive of the issue of control, defined

as the dramatic assertion of any of the rights n ormally associated wi th

ownership or possession . ( Id. at p p

. 263

– 264 .)12 USA Taekwondo

, supra, 11 Cal.5th at p. 215 ; Regents of University of

California v. Superior Court, supra, 4 Cal.5th at p. 619.)

“ Relationships that have been recognized as ‘ special ’ share a few

common features. Generally, the relationship has an aspect of

dependency in which one party relies to some degree o n the other for

protection. [Citations.]

. . . [¶] 

### The corollary of dependence in a

special relationship is control. Whereas one party is dependent, the

other has superior control over the means of protection. ‘ [A] typical

setting for the recognition of a special relationship is where “ the

plaintiff is particularly vulnerable and dependent upon the

defendant who, correspondingly, has some control over the plaintiff ’ s

welfare. ” ’ ” ( Regents of University of Calif ornia v. Superior Court

, 

### at

pp. 620

– 621.) As a result, the plaintiff can claim a right to expect the

defendant’s protection. ( Brown v. USA Taekwondo

, at p. 216.)

Dominguez contends as Colonial’s employee she had a special

relationship with her employer. (See Brown v. USA Taekwondo , supra,

11 Cal.5th at p. 216 [examples of special relationships creating an

affirmative duty to protect include the relationship between employe rs

and employees]; accord

, Regents of University of California v. Superior

Court , supra , 4 Cal.5th at p. 620.) According to Dominguez , Colonial

was therefore required to undertake measures to protect its working

at

- home employee s from third party criminal harm. 9 (See Rest.3d

Torts, Liability for Physical and Emotional Harm (2012) § 40, subds. (a)

& (b) (4) [special relationships include “ an employer with its employees

who, while at work

, are: [¶] (a) in imminent danger ; or [¶] (b) injured

or ill and thereby rendered helpless”].)

However, Dominguez cannot call upon the special relationship

exception here. The scope of her employer

- employee relationship with

Colonial did not extend to the facts of this case. The shooting did not

occur at Dominguez ’s place of employment, but as discussed, at a

private residence that Colonial did not control. (See Rest.3d T orts,

9 S chindler produced no evidence that she was Colonial’s

employee and does not claim the special relationship exception.13 supra

, § 40, c om

. k [ “ The circumstances in which the affirmative duty

imposed in this Subsection might apply have been largely limited to the

risk to an employee of a criminal attack by a third party that occurs at

the place of employment

, ” italics added ] ; Regents of University of

California v. Superior Court , supra , 4 Cal.5th at pp. 625

– 626 [although

the university was in a special relationship with enrolled students, its

duty to protect them from third party criminal harm was limited to

curricular

- related activities or school

- sponsored events on facilities the

university controlled]. ) Dominguez could not reasonably expect any

protection afforded by its special relationship with Colonial to reach

into the setting of a private residence.

The special relationship exceptio n may also apply when the

defendant is able to control the conduct of the dangerous third party.

( Brown v. USA Taekwondo , supra

, 11 Cal.5th at p. 211.) In contending

Colonial was obligated to keep the home safe, Dominguez argues

Colonial negligently fail ed to control Kyle. Yet she failed to show

Colonial had a special relationship with Kyle that enabled it to prevent

his unprovoked assault. (See Regents of University of California v.

Superior Court , supra , 4 Cal.5th at p. 619; Brown v. USA Taekwondo

(2019) 40 Cal.App.5th 1077, 1094 , affd. (2021) 11 Cal.5th 204 [USA

Taekwondo’s duty to protect plaintiff from coach’s sexual assault

stemmed from its special relationship ability to control coach’s

conduct].)

C. The Rowland Factors Counsel Again st

Imposing a Duty to Protect

The Rowland court instructs us to balance foreseeability

- related

factors and public policy factors in de ciding whether to depart from an

implicated duty of care

. ( Brown v. USA Taekwondo

, supra

, 11 Cal.5th

at pp. 217

– 218; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764,

771.) Based on these factors, we conclude that even if Colonial

controlled the home or shared a special relationship with Dominguez so

as to give rise to a duty to protect one or both plaintiffs, negligence

liability should be precluded in this case. In so holding, we are not

unmindful of plaintiffs’ devastating injuries and Kyle’s horrific acts of14 violence. Rather, guided by the Ro wland factors, and particularly by

the unforeseeability of this unique and tragic event, we conclude that

imposing on an employer, like Colonial, a duty to ensure that a

working

- from

- home employee’s private residence is safe for visiting

coworkers and busi ness associates would be entirely unfounded and

unfair.

1. The Rowland foreseeability

- related

factors



### The foreseeability

- related factors are “the foreseeability of harm

to the plaintiff, the degree of certainty that the plaintiff suffered injury,

[ and ] the closeness of the connection between the defendant ’ s conduct

and the injury suffered .” ( Rowland, supra , 69 Cal.2d at p. 113; see

Cabral v. R alphs Grocery Co.

, supra, 51 Cal.4th at p. 7 7 1.) 

### Of these

three factors, whether the injury was foreseeable is the most

important in determining whether an exception should exist to the

duty to protect. ( Regents of University of California v. Superior Court

,

supra

, 4 Cal.5th at p. 629.) 

### Our task “ ‘ is not to decide whether a

particular plaintiff ’ s injury was reasonably foreseeable in light of a

particular defendant ’ s conduct, but rather to evaluate more generally

whether the category of negligent conduct at issue is sufficiently likely

to result in t he kind of harm experienced that liability may

appropriately be imposed .’ ” ( Cabral

, at p. 772; accord, Regents of

University of California

, at p. 629.) We do, however, evaluate the kind

of third party conduct involved in light of all the surrounding

circumstances as probative in assessing generally whether the category

of Colonial’s alleged negligent conduct 

### is sufficiently likely to result i n

the kind of harm plaintiffs experienced. “ What is ‘ sufficiently likely ’

means what is ‘ “ likely enough in the setting of modern life that a

reasonably thoughtful [person] would take account of it in guiding

practical conduct. ” ’ ” ( Martinez v. Bank of America (2000) 82

Cal.App.4th 883, 895.)

Of the three foreseeability

- related factors, only one, the degree of

certainty that the plaintiff suffered injury , counsels in favor of a duty to15 protect. Undoubtedly, plaintiffs experienced serious injuries i n this

case.

With respect to the factor of the foreseeability of harm, plaintiffs

have produced no evidence that Colonial had actual knowledge that

Kyle posed a risk of harm to working

- at

- home employee s. In his

deposition, the son of Colonial ’s owner , who oversaw Fresno office

operations

, testified he was unaware of Kyle’s mental health problems

and access to multiple firearms in the home . Plaintiffs presented no

evidence that any Colonial representative kne w of Kyle’s PTSD and

gun use.

Nor does a review of the surrounding circumstances emphasized

by plaintiffs make the shooting foreseeable : Holaday’s knowledge of

Kyle’s mental disorder, violent past, and gun use cannot be imputed to

Colonial. That is beca use , generally, an employee’s knowledge is

imputed to the employer only if that knowledge is within the scope of

the employee’s employment. (See Santillan v. Roman Catholic Bishop

of Fresno (2008) 163 Cal.App.4th 4, 10

– 12; Westman v. Clifton’s

Brookdale , Inc. (1948) 89 Cal.App.2d 307, 311.) The facts of Kyle’s

mental disorder, violent past, and gun use are not related to the

business of Holaday and Colonial, so Holaday had no duty to disclo se

them. Kyle was not an employee nor did he conduct any business with

Hol a day or Dominguez (or Schindler). For her part, Schindler asserts

that Colonial’s denial of any knowledge “is preposterous.” However,

“ ‘ [a]n issue of fact can only be created by a conflict of evidence. It is

not created by “ speculation, conjecture, imagination or guesswork. ” ’ ”

( Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.)

Moreover, there were no reports of similar incidents that may

have put Colonial on notice of a potential murderous attack on

working

- at

- home employee s. Plaintiffs offered no evidence of prior

threats or acts of violence by Kyle against Colonial employees or

anyone else, or of third party criminal acts by others against working

at

- home employee s that would have portended this particular assault.

( Cf. Rege nts of University of California v. Superior Court

, supra

,

4 Cal.5th at pp. 629

– 630 [ t ask force reports and incidents of16 unprovoked student violence placed postsecondary schools on notice of

possible on

- campus student attacks]; Brown v. USA Taekwondo , supra,

40 Cal.App.5th at pp. 1097

– 1098 [reported incidents of Taekwondo

coaches engaging i n improper sexual conduct with youth athletes made

such conduct foreseeable to governing organization]; Doe v. Roman

Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 676

[Archdiocese’s receipt of numerous reports of sexual assaults by clergy

i n parish schools made foreseeable a priest’s sexual abuse of plaintiff at

parish school].)

Schindler contends the shooting was “generally foreseeable”

because of the current prevalence of workplace violence as

acknowledged by Colonial in its workplace ant iviolence policy. It is

undeniable that shootings and other forms of violence can and do

happen in the workplace. But for foreseeability in the context of a duty

to protect, “[m]ore than a mere possibility of occurrence is required

since, with hindsight, everything is foreseeable. ” ( Fr i edman v. Merck &

Co. (2003) 107 Cal.App.4th 454, 465.)

The third foreseeability

- related factor is the closeness of the

connection

— or causal nexus

— between the defendant ’ s conduct and the

injury suffered . Plaintiffs argue Colonial negligently failed to take

steps to ensure the home was safe from Kyle’s potential violence. In

cases like this one involving third party criminal conduct, “the

existence of an intervening act does not necessarily attenuate a

defendant ’ s negligence. Rather, ‘ the touchstone of the analysis is the

foreseeability of that intervening conduct. ’ ” ( Regents of University of

California v. Superior Court

, supra, 4 Cal.5th at p. 631; see Kesner v.

Superior Court

, supra, 1 Cal.5th at p. 1148.) We discern no causal

nexus here. Kyle’s deranged and motiveless attack was so unlikely to

occur within the setting of modern life that a reasonably prudent

employer would not envision its occurrence in considering the

obligation t o protect employees from reasonably foreseeable harm.

2. The Rowland public policy factors



### The public policy factors are “ the moral blame attached to the

defendant ’ s conduct, the policy of preventing future harm, the extent of17 the burden to the defendant and consequences to the community of

imposing a duty to exercise care with resulting liability for breach, and

the availability, cost, and prevalence of insurance for the risk involved. ”

( Rowland, supra

, 69 Cal.2d at p. 113 ; Cabral v. Ralphs Grocery Co.

,

supra, 51 Cal.4th at p. 7 8 1; accord, 

### Issakhani v. Shadow Glen

Homeowners Assn., Inc. , supra

, 63 Cal

. App.5th at pp. 927

– 928.)

The public policy factors counsel against imposing a duty on

employers to ensure that working

- at

- home employee s are safe from

third party criminal conduct. The extent of the burden to employers

having to shoulder such a duty and the consequences to affected

employees would be extr emely onerous. First, employers would become

the insurers of the safety of working

- at

- home employee s in the event of

any intentional harm, even if the employer had no reason to expect it.

This is an unrealistic obligation. To avoid liability, employers would be

compelled to undertake costly and time

- consuming measures

— among

them, inspecting the home for weapons and other safety hazards,

vetting all residents and visitors, and monitoring the daily activities of

residents, visitors

, and the condition of th e home at least during

working hours. Maintaining the safety of the home may also include

building a fence, posting security guards, and installing metal

detectors, security systems

, and video cameras inside and outside the

home.

Second, for employees, t he employer’s efforts to avoid liability

would exact a high social cost. Employees would have to be willing to

accept their employer’s intrusions into their daily lives, the

modifications to their home

, and working in a state of siege. Further

,

an employ er’s background checks could potentially endanger the

employees’ rights to privacy and association, and in certain instances,

would be prohibited. For example, federal and state laws would block

an employer’s access to the medical, criminal, and driving r ecords of

employees and other occupants of the home. Employees would be faced

with surrendering these records to their employer on demand or face

possible termination or other job

- related penalties. And what if those

records yielded embarrassing or poten tially damaging information18 about one or more of the residents or visitors ? W ould the employer

have to make sure those individuals are banned from the home? Would

employees living in locations with higher crime rates or having visitors

and fellow residen ts with frequent law enforcement contacts be subject

to greater employer scrutiny? Would employers then be inclined to fire,

refuse to hire

, or otherwise discriminate against those employees in

conditions of employment?

Finally, when criminal conduct is induced by a mental disorder,

employers are not in the best position to stave off a violent outburst.

Thus, shifting the burden from medical professionals to employers to

deter such conduct would not necessarily prevent future harm to

working

- at

- home empl oyee s. Reasonable precautions would not likely

stop an irrational explosive attack or keep random victims from

sustaining injuries. For that reason, Colonial is neither morally

culpable n or blameworthy for its failure to anticipate or prepare for

Kyle’s PTSD

- related shooting.

Plaintiffs claim employers could avoid liability and the difficulties

of providing safety by simply refusing to allow employees to work at

home. However, this too w ould create substantial burdens. First, in

certain circumstances, like the recent pandemic’s stay

- at

- home orders,

many employees would be required to work at home. Second, many

employees need to work at home for purposes of child care, elder care

,

or the ir own disabilities. Not allowing these employees to work at

home because their employer decided that someone else visiting or

residing in the home may present a risk of criminal activity would be

unduly difficult, particularly for those employees who cou ld not afford

the expense of necessary child or elder care.

As for insurance, the employer’s duty proposed by plaintiffs is

bordering on absolute liability which, due to its enhanced risk, would

result in increased premiums, if insurance would be availabl e at all.

From the foregoing discussion it clearly appears the Rowland

factors fail to support an employer’s duty to ensure that working

- at

home employee s are safe from third party criminal harm. Additionally,

the lack of foreseeability and sound public policy counsel against the19 imposition of liability upon Colonial. Moreover, we are deeply

convinced th e duty envisioned by plaintiffs must be rejected as patently

unfair and running counter to el ementary justice

. A final word in light of the extraordinary facts of this case.

Dominguez makes much of Colonial’s workplace antiviolence policy,

which Colonial purportedly unreasonably ignored. 10 A lthough

considered in her return as a duty question, Domin g ue z ’s framing of

the issue is one of causation. She posits

, “ T his case is about Colonial’s

failure to enforce its own policy which resulted in severe and lifelong

injuries to Dominguez .” Dominguez also submitted the declaration of

Michael Corcoran, a security expert

. 11 He concluded that Colonial was

negligent and that its negligence caused Dominguez to suffer

“substantial harm.” 12 In Corcoran’s assessment, Colonial’s negligence

was due in part to its f ailure to explain and enforce the workplace

antiviolence policy and to provide employee training under the policy.

However, Dominguez offers no explanation of how or why these

measures would have deterred Kyle’s murderous attack. At best, this

aspect of Corcoran’s opinion and Dominguez ’s reliance thereon is an

assertion of “abstract negligence” and does not show a causal link

between Colonial’s purported failure to implement its workplace

10 A s mentioned, Colonial’s workplace antiviolence policy

acknowledged workplace violence is a “growing nationwide concern”

and lists behaviors that may constitute workplace violence on and off

Colonial’s premises. Significantly, the policy clearly indicates how

Colonial would respond to such incidents, n ot, as Dominguez’s

argument implies, how Colonial would predict or anticipate such

incidents

.

11 M ichael Corcoran is president and owner of Workthreat Group,

LLC, which conducts individual security and building/area forensic

evaluations.

12 T he trial court d eclined to rule on Colonial’s numerous

objections to the admission of Corcoran’s declaration but stated it did

not rely on the document in denying Colonial’s summary judgment

motion.20 antiviolence policy and Kyle’s shooting rampage in the home. ( Nobl e v.

L

. A

. Dodgers (1985) 168 Cal.App.3d 912, 917, 918 [expert’s claim

Dodgers’ security was “inadequate” without establishing a causal nexus

between the alleged negligence and injury was a “classic example” of

abstract negligence].)

IV. Plaintiff s’ Claim of Intentional Infliction of

Emotional Distress Against Colonial

“ ‘ The elements of the tort of intentional infliction of emotional

distress are: “ ‘ (1) extreme and outrageous conduct by the defendant

with the intention of causing, or reckless disr egard of the probability of

causing, emotional distress; (2) the plaintiff ’ s suffering severe or

extreme emotional distress; and (3) actual and proximate causation of

the emotional distress by the defendant ’ s outrageous conduct.

. . . ’

Conduct to be outrageous must be so extreme as to exceed all bounds of

that usually tolerated in a civilized community. ” [Citation.] The

defendant must have engaged in “ conduct intended to inflict injury or

engaged in with the realization that injury will result. ” ’ ” ( Carlsen v.

Koivumaki (2014) 227 Cal.App.4th 879, 896; accord, Hughes v. Pair

(2009) 46 Cal.4th 1035, 1050.)

Plaintiffs allege Colonial intentionally engaged in extreme and

outrageous conduct by failing to control or prevent Kyle from harming

plaintiffs when Colonial knew or reasonably should have known that he

was prone to violence. And as a proximate result of Kyle’s harm,

plaintiffs have suffered severe emotional distress.

This cause of action fails as a matter of law. As discussed, there

are no tria ble issue s that (1) Colonial knew or reasonably should have

known that Kyle posed a danger to plaintiffs

— Kyle’s deadly

misconduct was unforeseeable

, and (2) Colonial had no ability to control

Kyle.

V. Plaintiffs ’ Respondeat Superior Claims Against

Colonia l

Plaintiffs also contend Colonial was vicariously liable under the

doctrine of respo n deat superior based on Holaday’s status as a Colonial

employee. To support their derivative claims against Colonial for21 negligence, negligent supervision, and intentiona l infliction of

emotional distress, they argue Holaday was acting within the scope of

her employment with Colonial. 13 However, Dominguez ’s theory of

Colonial’s respondeat superior liability fails to satisfy the threshold

criterion that Holaday was acting within the scope of employment. 14



### Under the doctrine of respondeat superior, “ ‘an employer may

be held vicariously liable for torts committed by an employee within

the scope of employment.’ ” ( Patterson v. Domino’s Pizza, LLC (2014)

60 Cal.4th 474, 491

, italics omitted; accord, Lisa M. v. Henry Mayo

Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) 

### “Under

certain circumstances, the employer may be subject to this form of

vicarious liability even for an employee ’ s willful, malicious, and

criminal conduct.” ( Patterson, at p. 491; accord, Lisa M

., at p. 297.)

“To be within the scope of employment, the incident giving rise to the

injury must be an outgrowth of the employment, the risk of injury

must be inherent in the workplace, or typical of or broadly incidental

to the employer’s enterprise. ” ( Torres v. Parkhouse Tire Service, Inc.

(2001) 26 Cal.4th 995, 1008; see Lisa M., at p. 299 [“The employment,

in other words, must be such as predictably to create the risk

employees will comm it intentional torts of the type for which liability is

sought”].)

G enerally

, the determination whether an employee has acted

within the scope of employment is a question of fact ; it becomes a

question of law, however, where, as here, “ ‘the facts are undisputed

13 S c hindler argued there were triable issues that Colonial was

vicariousl y liable under the doctrine of superior liability in her

opposition to Colonial’s summary judgment motion. However, she has

omitted this argument in her return . W e include Schindler in our

analysis because the respondeat superior theory did not apply in this

case as a matter of law.

14 W e express no view on the merits of both plaintiffs’ direct

claims against Holaday.22 and no conflicting inferences are possible.’ ” ( Mary M. v. City of Lo s

Angeles (1991) 54 Cal.3d 202, 213.)

The record established that Holaday worked as a dispatcher and

employee supervisor for Colonial, a moving and storage company. Kyle

was unemployed and Hol a day testified Kyle did not work for Colonial

before or at the time of the shooting. Nor is there any evidence that

Kyle assisted Holaday in her work for Colonial. Thus, Holaday’s

knowledge and management of Kyle’s mental disorder at home was a

personal family matter, entirely unrelated to her work for Colonial.

In deed, Dominguez presented no evidence that Holaday was acting

within the scope of her employment when she allegedly failed to

forestall her son’s violent act. Instead, Dominguez merely repeats her

arguments that (1) Colonial knew of and benefited from Holaday’s

practice of working at home

, and (2) Holaday’s conduct of allowing

Dominguez and Schindler into her home was negligent and outrageous

.

There is no triabl e issue that Holaday’s purported negligent or

intentional misconduct was not an outgrowth of or inherent in her work

for Colonial. Nor was it the type of activity that a company like

Colonial would perceive as resulting in a loss ordinarily considered as a

cost of doing business. ( Farmers Ins. Group v. County of Santa Clara

(1995) 11 Cal.4th 992, 1004 [ “ ‘ A risk arises out of the employment

when “ in the context of the particular enterprise an employee ’ s conduct

is not so unusual or startling that it would seem unfair to include the

loss resulting from it among other costs of the employer ’ s business ” ’ ” ].)

Respondeat superior liability does not apply here as a matter of law.

Because we find summary judgment should have been ordered in

this case

, we conclude the trial court misapprehended the dispositive

issues in denying Colonial’s motion for summary judgment. The triable

issues of fact the court found were inconsequential, irrelevant

, or not in

dispute

.23 DISPOSITION

The petition for writ of mandate is granted and the requested

writ hereby issues. The respondent court is directed to vacate its order

of July 23, 2020, denying Colonial Van & Storage, Inc.’s motion for

summary judgment and enter a new and different order granting

Colonial’s moti on for summary judgment. Colonial Van & Storage, Inc.,

is to recover its costs in this proceeding.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.