Filed 3/17/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANNET HERNANDEZ,

 Plaintiff and Respondent,

v.

MARIA JENSEN,

 Defendant and Appellant.

B294449 (consolidated with 

B296958)

(Los Angeles County

Super. Ct. No. BC633443)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Chester Horn, Jr., Judge. Affirmed. 

Michael Maguire & Associates, Paul Kevin Wood and 

Kathryn Saldana for Defendant and Appellant.

Law Offices of Frank J. Valdez and Frank J. Valdez; The 

Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and 

Respondent.

__________________________
2

INTRODUCTION

Maria Jensen and her family hired two healthcare aides to 

work in their elderly parents’ home. While one of the aides 

bathed Jensen’s mother in a hospital bed in her bedroom, the 

second aide reached into the bedroom closet to retrieve an oxygen 

tank for Jensen’s father. The removal of the tank caused a 

loaded rifle in the closet to fall and discharge, striking the other 

aide and injuring her. 

A jury found Jensen liable for negligence. Jensen appeals, 

arguing she did not owe the injured aide a duty of care and she 

did not cause the aide’s harm. Jensen also argues the trial court 

incorrectly instructed the jury on general negligence and the 

verdict form reflected that error. 

California law establishes the general duty of each person 

to exercise reasonable care for the safety of others. We decline to 

recognize an exception to this fundamental principle for 

employers and supervisors of healthcare aides working in homes 

where firearms are present. It is foreseeable that an accidental

shooting might occur in a home containing unsecured, loaded 

firearms, and policy considerations favor a duty to use reasonable 

care when one knows firearms are present. We accordingly hold 

that Jensen owed the aide a duty of care. We further hold that 

substantial evidence supports the jury’s finding that Jensen’s 

negligence was a substantial factor in causing the aide’s harm, 

and we find no error in the jury instructions. We affirm.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Jensen and Her Family Hire Home Healthcare Aides To

Care for Their Parents

Maria Jensen is the adult daughter of Josefina and 

Fernando Corona.1 At the time of the events in this case, 

Josefina and Fernando were 87 years old. Josefina was 

bedridden, and Fernando had limited mobility and impaired 

hearing. Josefina and Fernando owned a home in the City of 

Commerce where the shooting occurred. Jensen lived in Santa 

Maria, California and visited her parents at least monthly, 

staying for a weekend or sometimes a week at a time.

In 2012, Jensen and her family learned that Josefina had 

dementia. Beginning in December 2013, Gerinet, Inc. provided 

hospice care for Josefina. Annet Hernandez worked for Gerinet 

as a home healthcare aide. 

Jensen completed and signed the paperwork hiring Gerinet 

to provide home healthcare services for Josefina. Jensen 

identified herself as a primary caregiver for her mother. At the 

time Jensen hired Gerinet, Fernando could not care for Josefina

or their home. 

When Jensen hired Gerinet, she did not discuss safety with 

the Gerinet representative. The intake forms Jensen signed 

stated that the hiring party would “provide a safe home 

environment in which care can be given.” During an intake 

meeting with a Gerinet representative, Jensen showed the 

representative the rooms to which the Gerinet staff would have 

1 For clarity, we refer to Josefina and Fernando Corona and 

to Jensen’s siblings by their first names.
4

access, i.e., the kitchen, her parents’ bedroom, the den, and the 

shower room. 

In March 2014 the family hired a second home healthcare 

worker, Tanya Duran, to provide care for Josefina, perform light 

housekeeping, and cook for Josefina and Fernando. Jensen told 

Duran her duties and that Jensen was “in charge of her parents 

and everything that was in the house.” Jensen set Duran’s hours 

and supervised Duran and her work. 

Because there had been break-ins at the house, Jensen’s 

husband installed surveillance cameras. Jensen used the 

cameras to monitor her parents when she was not there. Jensen 

also used the cameras to supervise Duran’s work. 

B. A Rifle in a Bedroom Closet Discharges, and Hernandez Is

Shot

On February 16, 2015 Duran and Hernandez were at work 

at Josefina and Fernando’s home. Jensen was not in Commerce 

that day. Fernando told Duran he was short of breath, and 

Duran went to Josefina and Fernando’s bedroom to retrieve an 

oxygen tank for him. When Duran entered the bedroom, 

Hernandez was bathing Josefina in the bedroom. Duran opened 

a sliding closet door and reached into the closet to retrieve an 

oxygen tank. The removal of the tank caused a loaded rifle in the 

closet to fall and discharge.

Duran saw a flash of light and heard a sound “like a 

firecracker” or a “pop.” Hernandez told Duran “something hit 

me,” and they realized Hernandez had been shot. Hernandez fell 

to her knees, and Duran called 911. Hernandez suffered serious 

injuries, including a fractured pelvis and a perforated intestine. 

The police confiscated the rifle, a BB gun, and a loaded 

handgun from Josefina and Fernando’s bedroom. After 
5

paramedics and police arrived, Duran telephoned Jensen to tell 

her what had occurred. Jensen asked Duran: “What the fuck are 

you doing in the closet?” Jensen did not ask about Hernandez’s 

condition. Jensen testified she was “pissed” and “mad” about the 

shooting. The police determined the shooting was accidental.

C. Jensen and Her Siblings Knew Fernando Kept Firearms in

the House

Before the shooting, Jensen knew her father had handguns 

and rifles in the house, including a handgun and a BB gun in his 

nightstand. Jensen also knew her father had kept handguns and 

rifles at a prior residence. Jensen testified that Fernando was “a 

little crazy when it came to guns.” 

Jensen had not seen the rifle involved in the shooting and 

did not know it was in the bedroom closet. Jensen’s husband 

knew Fernando had guns in the house because he had unloaded 

two of them. Jensen’s sister Irma knew Fernando had guns in 

the house, including a handgun in the bedroom nightstand. Irma 

had not seen the rifle involved in the shooting and did not know 

how it came to be in the closet. Jensen’s brother John had seen a 

rifle in the bedroom closet but did not tell Duran it was there. 

John did not tell Jensen or Irma about the rifle either. Fernando 

did not have a gun safe in the house. 

Following the shooting, Gerinet informed the family that 

all guns must be removed from the house before Gerinet 

personnel could continue working in the house. Jensen was 

present by telephone for that conversation. After the 

conversation with Gerinet, and within two weeks after the 

shooting, Duran found two more rifles at the other end of the 

same bedroom closet.
6

D. The Jury Finds Jensen, John, and Fernando Liable for

Negligence

Hernandez sued Jensen, John, and Fernando, as well as 

Josefina’s estate, Josefina as trustee of a family trust, and 

Jensen’s other two siblings. The jury found Jensen, John, and 

Fernando liable for general negligence and awarded total 

damages of $3.61 million. The jury apportioned fault 65 percent

to Jensen, 20 percent to John, and 15 percent to Fernando. The 

trial court entered judgment on the jury’s verdict on September 

12, 2018. The court subsequently reduced the economic damages 

award from $610,000 to $406,644.77 and left the $3 million noneconomic damages award intact. Jensen timely appealed.

DISCUSSION

A. Standards of Review

Hernandez alleged causes of action for general negligence

and premises liability. Jensen argues she did not owe Hernandez

a duty of care and she did not cause Hernandez’s harm. 

The elements of a negligence claim and a premises liability

claim are the same: a legal duty of care, breach of that duty, and

proximate cause resulting in injury. (Kesner v. Superior Court

(2016) 1 Cal.5th 1132, 1158 (Kesner).) Duty is a question of law

for the court, to be reviewed de novo on appeal. (Cabral v. Ralphs

Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).) 

The elements of breach of duty and causation are ordinarily

questions of fact for the jury’s determination. (Vasquez v.

Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278

(Vasquez).) “Where findings of fact are challenged on appeal, we

are bound by the ‘elementary, but often overlooked principle of

law, that . . . the power of the appellate court begins and ends
7

with a determination as to whether there is any substantial

evidence, contradicted or uncontradicted,’ to support the findings

below.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193

Cal.App.4th 1563, 1569 (Garbell), quoting Crawford v. Southern

Pacific Co. (1935) 3 Cal.2d 427, 429; Schmidt v. Superior Court

(2020) 44 Cal.App.5th 570, 582.) The substantial evidence

standard of review applies to the jury’s findings on causation. 

(Cabral, supra, 51 Cal.4th at p. 770.) 

Jensen also argues the trial court erred by failing to

instruct the jury that ownership, maintenance, or control of the

premises was a prerequisite to finding Jensen liable for general

negligence. The propriety of jury instructions is a question of law

that we review de novo. (Alamo v. Practice Management

Information Corp. (2013) 219 Cal.App.4th 466, 475.)

B. Jensen Owed Hernandez a Duty of Care

1. The duty of care

Pursuant to Civil Code2 section 1714, subdivision (a),

“[e]veryone is responsible, not only for the result of his or her

willful acts, but also for an injury occasioned to another by his or

her want of ordinary care or skill in the management of his or her

property or person, except so far as the latter has, willfully or by

want of ordinary care, brought the injury upon himself or

herself.” (§ 1714, subd. (a).) “California law establishes the

general duty of each person to exercise, in his or her activities,

reasonable care for the safety of others.” (Cabral, supra, 51

Cal.4th at p. 768.) “In the absence of a statutory provision

establishing an exception to the general rule of Civil Code section

2 All further statutory references are to the Civil Code.
8

1714, courts should create one only where ‘clearly supported by

public policy.’” (Id. at p. 771, quoting Rowland v. Christian

(1968) 69 Cal.2d 108, 112 (Rowland).)

“In the Rowland decision, th[e] court identified several

considerations that, when balanced together, may justify a

departure from the fundamental principle embodied in Civil Code

section 1714: ‘the foreseeability of harm to the plaintiff, the

degree of certainty that the plaintiff suffered injury, the closeness

of the connection between the defendant’s conduct and the injury

suffered, the moral blame attached to the defendant’s conduct,

the policy of preventing future harm, the extent of 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.’” (Cabral, supra, 51 Cal.4th at p. 771.)

The Supreme Court has explained that “[t]he Rowland

factors fall into two categories. Three factors—foreseeability,

certainty, and the connection between the plaintiff and the

defendant—address the foreseeability of the relevant injury,

while the other four—moral blame, preventing future harm,

burden, and availability of insurance—take into account public

policy concerns that might support excluding certain kinds of

plaintiffs or injuries from relief.” (Kesner, supra, 1 Cal.5th at p.

1145.)

2. Foreseeability factors

“The most important factor to consider in determining 

whether to create an exception to the general duty to exercise 

ordinary care articulated by section 1714 is whether the injury in 

question was foreseeable.” (Kesner, supra, 1 Cal.5th at p. 1145.) 

For purposes of duty analysis, “‘foreseeability is not to be 
9

measured by what is more probable than not, but includes 

whatever is likely enough in the setting of modern life that a 

reasonably thoughtful [person] would take account of it in 

guiding practical conduct.’ . . . [I]t is settled that what is required 

to be foreseeable is the general character of the event or harm—

e.g., being struck by a car while standing in a phone booth—not 

its precise nature or manner of occurrence.” (Ibid.)

It is foreseeable that a home healthcare worker might 

accidentally be shot in a home containing unsecured, loaded

firearms. Accidental shootings in residences are a sad reality of 

modern life. In light of this known risk, a reasonably thoughtful 

person employing a healthcare aide in a home containing guns 

would consider the possibility that a gun could be discovered and 

accidentally discharged. Jensen described her father as “a little 

crazy when it came to guns” and knew her father had handguns 

and rifles in the house, including a handgun in his nightstand. 

Jensen’s argument that she did not know the specific rifle 

involved in the shooting was in the closet misconstrues the 

foreseeability analysis. “[I]t is settled that what is required to be 

foreseeable is the general character of the event or harm . . . not 

its precise nature or manner of occurrence.” (Kesner, supra, 1 

Cal.5th at p. 1145.) The general character of the event or harm 

here is the likelihood that an unsecured gun in a home could 

accidentally discharge and cause injury. Unfortunately, that 

occurrence is more than “‘likely enough in the setting of modern 

life that a reasonably thoughtful [person] would take account of it 

in guiding practical conduct.’” (Ibid.)

Jensen’s argument that she did not owe Hernandez a duty 

of care because “the presence of guns in the house would not have 

made it foreseeable to [Jensen] that either 1) a gun would be 
10

found in a closet, or 2) this gun would be kept loaded” overlooks 

that “the Rowland factors are evaluated at a relatively broad 

level of factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.) 

Thus, as to foreseeability, “the court’s task in determining duty 

‘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 the kind of harm experienced that liability may 

appropriately be imposed . . . .’” (Ibid., original italics.) The first 

foreseeability factor weighs against finding an exception to the 

duty to exercise reasonable care for the safety of others.3

“The second Rowland factor, the degree of certainty that 

the plaintiff suffered injury, ‘has been noted primarily, if not 

exclusively, when the only claimed injury is an intangible harm 

such as emotional distress.’” (Kesner, supra, 1 Cal.5th at p. 1148, 

quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 421.) 

Hernandez was shot and suffered serious physical injuries. Her 

injuries are certain and compensable under the law. (Kesner, at 

p. 1148.) The second foreseeability factor weighs against finding 

an exception to the duty of care.

3 Jensen also contends that “property or person” in 

section 1714 precludes a duty of care because Jensen did not 

control the “property” where the shooting occurred and her 

“person” was not involved in the shooting. Contrary to this 

narrow interpretation, section 1714 “establishes the general duty 

of each person to exercise, in his or her activities, reasonable care 

for the safety of others.” (Cabral, supra, 51 Cal.4th at p. 768,

italics added.)
11

The third Rowland factor, “the closeness of the connection 

between the defendant’s conduct and the injury suffered[,]’ 

[citation] is strongly related to the question of foreseeability 

itself.” (Cabral, supra, 51 Cal.4th at p. 779.) “Generally 

speaking, where the injury suffered is connected only distantly 

and indirectly to the defendant’s negligent act, the risk of that 

type of injury from the category of negligent conduct at issue is 

likely to be deemed unforeseeable. Conversely, a closely 

connected type of injury is likely to be deemed foreseeable.” 

(Ibid.) 

Hernandez was injured when a loaded rifle fell from a 

bedroom closet. That injury could result from the presence of an 

unsecured rifle in a residence is clearly foreseeable. The presence 

of the loaded rifle in the home, and Jensen’s failure to secure her 

father’s guns or advise Duran and Hernandez of their presence, 

are closely connected to Hernandez’s gunshot injury. Duran’s 

intervening conduct of removing the oxygen tank from the closet 

did not create a risk that Hernandez would be shot; the presence 

of an unsecured, loaded firearm in the home created that risk. 

The third foreseeability factor weighs against finding an 

exception to the duty of care.

4

4 Jensen argues that an individual owes no general duty to 

warn or control the conduct of family members with respect to 

guns or weapons. The cases Jensen cites involve claims based on 

the failure of family members to prevent shootings by other 

family members, not the failure to secure weapons or disclose 

their presence to those likely to be accidentally injured by them. 

(See Smith v. Freund (2011) 192 Cal.App.4th 466, 475 [affirming 

summary judgment for parents, finding that son’s shooting of two 

individuals was not foreseeable and thus parents did not owe 

plaintiffs duty of care]; Todd v. Dow (1993) 19 Cal.App.4th 253, 
12

3. Policy factors

Having concluded it is reasonably foreseeable that an 

unsecured, loaded firearm stored in a home could accidentally 

discharge and cause injury, we turn to the policy considerations 

for and against the imposition of liability. (Kesner, supra, 1 

Cal.5th at pp. 1149-1150.) These policy considerations include 

the moral blame attached to the defendant’s conduct, the policy of 

preventing future harm, the extent of 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.)

The Supreme Court has explained, “We have previously 

assigned moral blame, and we have relied in part on that blame 

in finding a duty, in instances where the plaintiffs are 

particularly powerless or unsophisticated compared to the 

defendants or where the defendants exercised greater control 

over the risks at issue.” (Kesner, supra, 1 Cal.5th at p. 1151.) 

The moral blame factor weighs against creating an exception for 

employers and supervisors of home healthcare aides because 

those familiar with a home are far better positioned to protect 

against the risk of accidental residential shootings than outside 

workers are. A healthcare aide employed in a private home

cannot be expected to search the home for firearms and, 

259 [affirming summary judgment for parents, finding parents 

had no duty to supervise or control adult son’s activities]; Wise v. 

Superior Court (1990) 222 Cal.App.3d 1008, 1014 [holding wife 

had no duty to prevent husband from committing unforeseeable 

sniper attack].)
13

moreover, determine whether they are loaded. The moral blame 

factor does not support creating an exception to the duty of care. 

“The overall policy of preventing future harm is ordinarily 

served, in tort law, by imposing the costs of negligent conduct 

upon those responsible. The policy question is whether that 

consideration is outweighed, for a category of negligent conduct, 

by laws or mores indicating approval of the conduct or by the 

undesirable consequences of allowing potential liability.” 

(Cabral, supra, 51 Cal.4th at pp. 781-782.) In evaluating the 

burden that a tort duty would impose on the defendant and the 

community, the court’s “duty analysis is forward-looking, and the 

most relevant burden is the cost to the defendants of upholding, 

not violating, the duty of ordinary care.” (Kesner, supra, 1 

Cal.5th at p. 1152.)

Jensen argues that imposing an “unlimited duty to 

caregivers” on adult children assisting elderly parents will 

discourage individuals from hiring home healthcare workers and, 

in turn, preclude elderly people from remaining in their homes. 

The duty here, however, is not as wide-ranging as Jensen 

describes. It is a duty to exercise reasonable care for the safety of 

others when one knows firearms are present. Public policy 

supports the safe storage and handling of guns, particularly in 

circumstances where one party has superior knowledge and the 

ability to prevent accidental shootings. These factors weigh 

against creating a duty exception.

The final policy factor is the availability of insurance for 

the risks involved. Jensen concedes she has insurance coverage 

for at least some of her liability. The insurance factor weighs 

against creating an exception to the duty of care.
14

C. Substantial Evidence Supports the Jury’s Finding that

Jensen’s Negligence Was a Substantial Factor in Causing

Hernandez’s Harm

Jensen next argues she did not cause Hernandez’s harm. 

Jensen characterizes this argument as a question of law to be

decided by the court. On this factual record, however, the

decision whether Jensen’s negligence caused Hernandez’s harm

was a question of fact for the jury.

Breach of duty is usually a fact issue for the jury. 

(Constance B. v. State of California (1986) 178 Cal.App.3d 200,

207; see also Vasquez, supra, 118 Cal.App.4th at p. 278 [“the

elements of breach of . . . duty and causation are ordinarily

questions of fact for the jury’s determination”].) “[G]iven a

breach of duty by the defendant, the decision whether that

breach caused the damage (that is, causation in fact) is again

within the jury’s domain . . . .” (Constance B., at p. 207, original

italics.) Only “where reasonable [people] will not dispute the

absence of causality, [may] the court . . . take the decision from

the jury and treat the question as one of law.” (Ibid.)

Jensen argues her conduct and Hernandez’s harm are

insufficiently close because “one simply could not foresee” that a

loaded rifle would be kept in a closet near an oxygen tank and

that Duran’s removal of the tank would cause the rifle to fall and

discharge. In one sense, this argument restates Jensen’s

unpersuasive foreseeability argument addressed above. In

another sense, this argument is a contention that substantial

evidence did not support the jury’s conclusion that Jensen’s

negligence was a substantial factor in causing Hernandez’s harm. 

That contention is also unpersuasive.

Jensen knew her father had handguns and rifles in the

house, including a handgun in the bedroom nightstand. Jensen
15

oversaw Duran’s and Hernandez’s work and knew they had

access to substantial areas of the house, including her parents’

bedroom. Despite Jensen’s knowledge that her father kept

firearms in the house and that Duran’s and Hernandez’s job

duties required them to work throughout much of the residence,

Jensen neither secured the firearms nor warned Duran and

Hernandez of their presence. The jury could reasonably conclude

from this evidence that Jensen’s conduct contributed to

Hernandez’s harm. (See Bockrath v. Aldrich Chemical. Co.

(1999) 21 Cal.4th 71, 79 [“The substantial factor standard is a

relatively broad one, requiring only that the contribution of the

individual cause be more than negligible or theoretical.”]; Osborn

v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253

[“[c]ausation in fact is ultimately a matter of probability and

common sense”].) Substantial evidence supports the jury’s

finding that Jensen’s negligence was a substantial factor in

causing Hernandez’s harm.

5

5 Jensen also contends the trial court erred in denying her 

summary judgment motion, in which she argued the same issues

she challenges from the trial, i.e., that she did not owe 

Hernandez a duty of care and that she did not cause Hernandez’s 

harm. “As a general rule, the denial of summary judgment is 

harmless error after a full trial covering the same issues.” 

(Legendary Investors Group No. 1 LLC v. Niemann (2014) 22

Cal.App.4th 1407, 1410; see also Transport Ins. Co. v. TIG Ins. 

Co. (2012) 202 Cal.App.4th 984, 1011 [“general rule [is] that 

denial of [summary judgment] motions may not be challenged [on 

appeal] because the parties litigated the same issues at trial”].) 

Moreover, as discussed, Jensen owed Hernandez a duty of care,

and substantial evidence supports the jury’s finding that Jensen’s 

negligence caused Hernandez’s harm. 
16

D. The Trial Court Did Not Err in Instructing the Jury, and

the Verdict Form Was Proper

Jensen last argues the trial court erred by failing to

instruct the jury that ownership, maintenance, or control of the

premises was a prerequisite to finding Jensen liable for general

negligence. Jensen also argues the verdict form reflecting the

general negligence instruction was erroneous. 

The trial court instructed the jury on the elements of

Hernandez’s general negligence claim with CACI No. 400. CACI

No. 400 states that to find a defendant liable for general

negligence, the jury must find the plaintiff proved all of the

following: (1) the defendant was negligent; (2) the plaintiff was

harmed; and (3) the defendant’s negligence was a substantial

factor in causing the plaintiff’s harm. Jensen argues that

because Hernandez’s injury occurred in Jensen’s parents’ home,

to prove general negligence Hernandez also must prove Jensen

owned, maintained, or controlled the house. 

Jensen’s argument conflates general negligence and

premises liability theories. Ownership, maintenance, or control

of the home is not required to find Jensen liable for general

negligence. Jensen’s liability arises from the jury’s finding that

Jensen failed to use reasonable care and that her negligence was

a substantial factor in causing Hernandez’s harm. Premises

liability, by contrast, “‘is grounded in the possession of the

premises and the attendant right to control and manage the

premises’”; accordingly, “‘mere possession with its attendant right

to control conditions on the premises is a sufficient basis for the

imposition of an affirmative duty to act.’” (Kesner, supra, 1

Cal.5th at p. 1158.) Jensen’s negligence is not “grounded in the

possession” of and right to control her parents’ home. Jensen’s
17

negligence derives from her failure to protect or warn against a

known danger with a foreseeable risk of harm. The trial court

did not err in instructing the jury on the elements of Hernandez’s

general negligence claim, and the verdict form containing those

elements was proper.

DISPOSITION

The judgment is affirmed. Hernandez shall recover her

costs on appeal.

MCCORMICK, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

* Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.