Doe v. Brightstar Residential Incorporated ( 2022 )

Filed 3/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JANE IL DOE, B304084
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC667499
v.
BRIGHTSTAR RESIDENTIAL
INCORPORATED et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deirdre H. Hill, Judge. Reversed and
remanded.
Manly, Stewart & Finaldi, Morgan A. Stewart, Saul E.
Wolf, Cristina J. Nolan; Esner, Chang & Boyer, Holly N. Boyer,
Shea S. Murphy and Kevin K. Nguyen for Plaintiff and
Appellant.
Berman, Berman, Berman, Scheider & Lowary, Mark E.
Lowary, Brian T. Gravdal and David H. Ryan for Defendants and
Respondents.
____________________
In her 20s, Jane IL Doe had the mental age of a child. A
handyman sexually assaulted her at a residence for the disabled.
Doe sued the residence and its owners for failing to protect her.
The trial court granted summary judgment because the attack
was unforeseeable.
Doe’s appeal raises two central issues.
The first concerns evidence law, which can be intricate.
Police reports are a prime example. Often these reports contain
inadmissible hearsay, yet exceptions riddle the hearsay rule and
here they overwhelmed it. The court excluded evidence from a
police file that the residence knew its handyman had a history of
harassing women. This evidence was relevant to whether the
attack was foreseeable. It was admissible, as we explain.
Issue two is duty. What duty did the residence owe Doe?
That duty was to take cost-effective steps to protect her from
foreseeable harm from people like the handyman. Once the
residence knew it had a harasser on its payroll, its duty was to
contain that danger.
We reverse because whether the residence or its owners
knew or should have known of this danger was a disputed fact.
Summary judgment was inappropriate.
I
Doe has severe autism and other disabilities. She lived at
Brightstar Residential Incorporated, which provides residential
care to people with developmental disabilities. Doe’s disabilities
meant she could not do things for herself. Like Brightstar’s other
clients, Doe could not appreciate hazards. All Brightstar’s clients
required close supervision.
Mary Machado was Brightstar’s chief executive officer and
administrator. In a declaration, Mary Machado swore she had
2
been the sole owner and administrator of Brightstar since its
formation. Other information in the record, however, shows
Mary and Norlan Machado as a married couple jointly owned and
ran Brightstar.
The Machados shared responsibility for developing
residence rules, for hiring and supervising employees, and for
ensuring regulatory compliance. They were the top people on
Brightstar’s organizational chart, which listed Mary Machado as
“CEO/Administrator” and Norlan Machado as “Program
Manager.” They trained Brightstar’s employees to report
situations that endangered Brightstar’s clients. The employee
handbook said Brightstar had a “ZERO tolerance policy” for
“abuse and/or harassment of any type” involving “both
clients/staff.”
In 2011, the Machados hired Ruben Alcala as Brightstar’s
handyman, classing him an independent contractor. Alcala was
dating one of Brightstar’s caregivers, Martha Amparo, who had
recommended Alcala.
Norlan Machado testified he instructed all of Brightstar’s
independent contractors, including Alcala, to have no contact
with the residents beyond brief greetings, not to wander from
their work area, and never to be alone with a client. Mary
Machado claimed she gave Alcala similar warnings.
Alcala did not have regular hours. He worked as needed
and without supervision. Only the Machados and supervisor
Jessica Murillo could authorize his jobs at Brightstar. Alcala was
supposed to be on the property only at scheduled times and only
during the daytime.
3
Alcala assaulted Doe around 11:00 p.m. on May 10, 2016.
Doe was in her room when Alcala came to her window and told
her to climb out. She obeyed.
The lone nighttime caregiver, Carmelita Zabala, saw
someone outside between Brightstar’s two houses. Zabala
continued her rounds checking on clients and found Doe was not
in her bedroom. The window curtains were open and the blinds
were up.
Zabala found Doe in the backyard, undressed from the
waist down. Alcala was adjusting his pants and zipper. Zabala
called to Alcala, who fled the property and then the country.
Alcala had sexually assaulted Doe. It was difficult for her
to communicate, but Doe managed to convey Alcala had placed
his “peephole” in her mouth and oral copulation had occurred.
Investigators found male DNA, including saliva, on her breasts
and genitals. The saliva was Alcala’s.
Before Alcala attacked Doe, Brightstar had no surveillance
cameras, no alarm system, and a single caregiver at night.
Through her father, Doe sued Brightstar and the
Machados. After pleading challenges, Doe’s remaining claims
were for negligence, negligent supervision, negligent hiring
and/or retention, and negligent failure to warn, train, or educate.
Doe waived punitive damages.
Brightstar and the Machados moved for summary
judgment and summary adjudication. Their motion focused “on
the big-picture negligence claim” because they said there were no
significant differences between Doe’s causes of action. On appeal,
all parties have adopted that view.
Brightstar and the Machados argued Alcala’s assault was
not foreseeable, they had no knowledge of his dangerous
4
propensities, they had no duty to do more than they did, and no
facts established breach or conduct by them that caused Doe’s
injury. They also argued no facts established the Machados had
actively participated in the assault.
Doe countered the attack was foreseeable and ample
evidence showed the defendants had culpable knowledge: Alcala
had a propensity to abuse, he was a risk to Brightstar residents,
and he was on the property when he had no right to be there.
Doe argued the defendants breached their duty to Doe in many
ways, including by retaining Alcala. Doe’s attorney told the trial
court Brightstar should have fired Alcala.
Doe relied on a police file from the May 2016 incident,
along with other evidence. She discussed this file in her
discovery responses and cited it repeatedly in her statement of
additional material facts. The defendants objected to the police
file on grounds of hearsay and relevance and because Doe’s
briefing did not cite the file properly.
The trial court excluded this file as inadmissible hearsay
and granted the motion for summary judgment. The court
determined the remaining evidence did not show a reasonable
person could have anticipated Alcala’s attack. The court
concluded Doe had not established the elements of her negligence
claims, including duty, breach, and causation against Brightstar.
The Machados too were entitled to summary judgment, the court
ruled, because they did not authorize or direct Alcala’s
wrongdoing and were not actively involved in it.
II
We independently review Doe’s appeal of the summary
judgment ruling. (See Loomis v. Amazon.com LLC (2021) 63
Cal.App.5th 466, 475.) We liberally construe evidence offered
5
against the motion and resolve doubts in the opposition’s favor.
(Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 618.) We review evidentiary rulings for abuses of
discretion. (Wicks v. Antelope Valley Healthcare Dist. (2020) 49
Cal.App.5th 866, 875.)
A
The trial court incorrectly excluded evidence that suggested
Brightstar and the Machados knew Alcala was a problem. We
confine our analysis to the disputed police file, which suffices to
decide this appeal.
1
Brightstar offers three incorrect arguments why we should
not reach the issue of admissibility.
First, Brightstar argues Doe forfeited her arguments by not
raising them at the trial court. This argument would extend the
forfeiture rule to require the proponent of evidence at the
summary judgment stage to file written opposition to evidentiary
objections. There is no such rule. (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 851, fn. 11; see also
Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 526.) Doe’s
lawyer argued for admitting the police file at the summary
judgment hearing. Doe did not forfeit the issue.
Second, the defendants say Doe did not adequately cite the
police reports in her separate statement. The defense concedes
the trial court excluded the police file solely as inadmissible
hearsay. Citations were not an issue for the court.
Third, the defendants argue Doe failed to identify the key
facts from the police reports for the trial court. Puzzlingly, the
defendants also confess they are “not certain” whether Doe
adequately placed the key facts before the trial court. In any
6
event, Doe did preserve the issue. Her summary judgment
opposition argued the defendants ignored red flags about Alcala.
Her opposition brief cited her separate statement, which referred
to the police file. The defendants had asserted in their separate
statement Doe had no facts supporting her claim they knew of
Alcala’s dangerous propensities. Doe disputed this and pointed to
the same evidence. Citing the police file, Doe specified
particulars. Doe’s presentation was enough. (See Mackey v.
Trustees of California State University (2019) 31 Cal.App.5th 640,
657 [strictly scrutinize the summary judgment proponent’s
submissions and liberally view the opponent’s].)
2
Doe correctly faults the trial court for excluding evidence.
Two types of police report evidence were admissible.
a
The first type concerned Norlan Machado’s admissions.
Shortly after the assault, Norlan Machado told responding
police officers he knew Alcala had “a history of loitering around
the facility and harassing female employees.” One of the officers
recorded Machado’s admission in a police report, which was in
the file Doe included as an exhibit to her summary judgment
opposition.
The trial court excluded the police file with the comment
that “police reports are usually never admissible.”
It is true police reports are often inadmissible. (E.g.,
Johnson v. Lutz (1930) 253 N.Y. 124, 127–129 [170 N.E. 517,
518–519] [early and influential decision].)
But not always.
Under proper conditions, statements in a police report can
be admissible evidence. We explain.
7
In criminal cases, confrontation clause issues can block the
admission of police report evidence. (See People v. Sanchez
(2016) 63 Cal.4th 665, 679–698 (Sanchez); cf. Mueller &
Kirkpatrick, Evidence (1st ed. 1995) § 8.49, p. 983 [“Nobody
thinks prosecutors should use police reports, prepared after the
crime was committed, as evidence against criminal
defendants.”].)
In civil and criminal cases, police reports are inadmissible
when they contain improper multiple hearsay. (See Cal. Law
Revision Com. com., 29B pt. 5 West’s Ann. Evid. Code (2015 ed.)
foll. § 1271, p. 6 [“Police accident and arrest reports are usually
held inadmissible because they are based on the narrations of
persons who have no business duty to report to the police.”];
Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th
1190, 1204–1206.)
An example of a fatal double hearsay problem would be if
Witness tells Person X about Fact Y, and Person X writes a
report stating, “Witness said Fact Y.” The report’s account of
what Witness told Person X is first-level hearsay. Person X’s
written report is second-level hearsay: the written report is an
out-of-court statement offered for its truth. (See Evid. Code,
§ 1200; Sanchez, supra, 63 Cal.4th at pp. 674–675; Lake v.
Reed (1997) 16 Cal.4th 448, 459 (Lake).) If a court admitted
Person X’s report for its truth, both Witness and Person X could
escape cross-examination without any sign the hearsay was
trustworthy. That result is what the hearsay rule aims to avoid.
The trial court applied a general rule, but the general rule
does not hold here.
Double hearsay is admissible if a justification for admitting
the evidence rebuts the hearsay objection at each level. (Evid.
8
Code, § 1201; see Lake, supra, 16 Cal.4th at pp. 461–462
[admitting party admission in police report]; cf. Walker v.
Superior Court (2021) 12 Cal.5th 177, 201 [suggesting probation
reports can be admissible as official records under proper
circumstances].)
For Machado’s admission, double rejoinders cured the
double hearsay problem.
At level one, Machado’s statement to the officer was the
admission of a party opponent. (See Lake, supra, 16 Cal.4th at
pp. 461–462.) Section 1220 of the Evidence Code provides a
hearsay exception for admissions by party opponents, and Norlan
Machado is Doe’s party opponent. Machado’s statement to police
also was admissible for its truth against his company Brightstar.
(See Evid. Code, § 1222.)
At level two, the officer’s police report was admissible as an
official record. (Evid. Code, § 1280; Lake, supra, 16 Cal.4th at pp.
461–462; People v. Hall (2019) 39 Cal.App.5th 831, 843–845
(Hall); Donley v. Davi (2009) 180 Cal.App.4th 447, 461.)
The official records exception to the hearsay rule is based
on the presumption that public officers properly perform their
official duties. When public officers have a duty to make accurate
statements about facts within their official cognizance, the great
probability is that this incentive will prompt them to work
correctly, which creates the trustworthiness that justifies
acceptance of the hearsay statement. (Jazayeri v. Mao (2009) 174
Cal.App.4th 301, 317; see also Fisk v. Department of Motor
Vehicles (1981) 127 Cal.App.3d 72, 77; cf. Mueller & Kirkpatrick,
Evidence Under the Rules (5th ed. 2004) p. 284 [public records
exception presumes public servants in a democracy go about their
tasks with care, without bias or corruption, and that the scrutiny
9
and exposure surrounding governmental functions adds
assurance that public records are trustworthy].)
The incentive to be accurate disappears in other settings.
Consider the private train engineer in Palmer v. Hoffman (1943)
318 U.S. 109, 111–115, who drove his train into a car and killed
its passenger. That engineer knew he was very likely “to be
charged with wrongdoing as a participant in the accident, so that
he [was] almost certain, when making the memorandum or
report, to [have been] sharply affected by a desire to exculpate
himself and to relieve himself or his employer of liability.”
(Hoffman v. Palmer (2d Cir. 1942) 129 F.2d 976, 991, italics
omitted.) This “vigorous motive to misrepresent” meant the train
engineer’s report more resembled those by maritime companies,
which typically were biased and partisan disclaimers of
responsibility for disasters, where “ ‘the waves are almost always
mountain high’ ” and the winds are “ ‘never less than a
hurricane.’ ” (Id. at p. 981.)
Brightstar contested neither the authenticity of the police
report nor the foundational requirements of the official records
exception; rather, it argued the exception did not reach witness
statements in the report. Nor has Brightstar suggested the
police investigating Alcala had some incentive or bias against
Machado. And this civil case does not implicate the confrontation
clause issues that arise in criminal cases. (Sanchez, supra, 63
Cal.4th at pp. 679–698 & fns. 6 & 21; cf. Hall, supra, 39
Cal.App.5th at p. 844 [distinguishing Sanchez].)
Norlan Machado’s admission to police also was relevant to
the foreseeability of Alcala’s attack. What exactly was Alcala’s
“history” of harassing women? Machado mentioned employees
but otherwise did not say. In the light favorable to Doe, a
10
permissible inference would be that Alcala’s conduct had been
serious and repeated and that Machado was not eager to detail it.
If you know someone has a history of harassing women, you
might suspect that person has that propensity. (Cf. Evid. Code,
§ 1108 [as an exception to the general ban on propensity
evidence, proof of a propensity to commit sexual offenses is
admissible under some circumstances].)
In sum, Machado’s admission regarding Alcala’s history of
loitering and harassment properly should have been in the
record. (See Rupf v. Yan (2000) 85 Cal.App.4th 411, 430–432 &
fn. 6.)
The same analysis governs other admissions Norlan
Machado made to police. Machado told them “Alcala is not
allowed on premise after hours and without [Norlan] Machado
directly supervising him”; “Machado spoke with Alcala and
informed [him] he was not allowed to be in the facility unless he
was specifically working on repairs while being directly
supervised.”
This evidence is relevant. A fact finder could infer Norlan
Machado was concerned enough about Alcala’s history to change
the company’s practice and to determine Alcala needed
Machado’s personal supervision. This admission should have
been in the record.
Finally, Norlan Machado told police that “since his
conversation with Alcala, . . . Alcala has refrain[ed] from loitering
in the facility.” Viewing this evidence favorably to Doe, a fact
finder could infer Machado was aware Alcala posed a danger and
had responded ineffectively.
11
b
The second type of admissible evidence was a group of
statements Brightstar employees made to police about Alcala. At
the first level, Doe offered these employee statements, not for
their truth, but for the nonhearsay purpose that Brightstar and
its employees were on notice of Alcala’s disturbing and
unsupervised presence. (See Magnolia Square Homeowners
Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1057.) The
police reports again counted as official records, which addressed
the second level of the double hearsay issue. Brightstar and the
Machados do not argue otherwise and again do not contest the
foundational elements of this hearsay exception.
One example was Brightstar employee Antonia Garay’s
statement to police. The quote refers to Martha Amparo, the
Brightstar employee who dated Alcala. We add our italics to the
police report: “Once [Garay] saw Ruben [Alcala] at approx @
1945 hrs [ ] 1½ months ago in the back yard @ the tool shed.
Martha was not at work yet. . . . Saw him @ loc on weekends in
the evening hours. . . . [A]lmost everyday she would see Ruben
come into the facility when she was leaving & Martha began to
work. . . . Once she heard [Doe] tell Ruben ‘Hi daddy.’ Martha
said he is not your daddy.”
This was triple hearsay. (1) Garay heard Doe and Amparo
speak about “daddy”; (2) Garay told the officer what she heard;
and (3) the officer wrote in the police report what Garay had
related.
Starting with level one, the words Amparo and Doe spoke
about “daddy” were not helpful for their truth—whether Alcala
was or was not Doe’s daddy—but to show a usage suggesting
12
intimacy between Alcala and Doe, as well as Amparo’s concern
about this intimacy.
At level two, Garay’s statement showed employee Garay
had notice of possible intimacy between Alcala and a Brightstar
resident.
At level three, the police report again was an official record.
The evidence is relevant to the issue of whether Brightstar
was on notice of Alcala’s propensity to abuse Brightstar’s clients.
This evidence was admissible. Employee Garay’s
statement to police was not an admission, but rather was not
hearsay at all. Doe was offering these statements to prove
Brightstar’s corporate knowledge, not the truth. Whether true or
not, employee Garay’s knowledge was attributable to her
employer Brightstar: that Garay had notice Alcala was on the
property late at night and knew Doe called Alcala “daddy.” (See
Civ. Code, § 2332; Taylor v. Centennial Bowl, Inc. (1966) 65
Cal.2d 114, 125 (Taylor) [hearsay rule does not apply when
evidence is offered for notice rather than truth]; Northern
Natural Gas Co. v. Superior Court (1976) 64 Cal.App.3d 983,
992–993 [doctrine of imputed knowledge made corporate
president chargeable with knowledge of the statements and
conduct of employees].)
The same analysis governs Brightstar caregiver Lorena
Chavez’s statement to police that Alcala came to Brightstar for
unsupervised meals with his girlfriend and at nighttime, and
that Doe and Alcala would say hello to each other. So too with
caregiver Stacey Solomon’s report to police that she had seen
Alcala on the property at night and that Doe would say hello to
Alcala.
13
Whether true or not, these employee statements were
admissible as nonhearsay for their notice to Brightstar as a
business entity. In a light favorable to Doe, the staff effectively
said Alcala was on Brightstar’s property when he was not
supposed to be there, and he was there often enough to have a
familiar relationship with Doe. This knowledge was chargeable
to Brightstar.
The same holds for statements other Brightstar caregivers
gave police about seeing and reporting about Alcala unsupervised
on the property. The police reports recounted these statements,
which were not hearsay or double hearsay and which were
admissible to show Brightstar’s knowledge.
3
Excluding this evidence was an abuse of discretion.
These statements permit an inference Brightstar knew its
company handyman had a history of harassing women and was
loitering to groom a disabled woman for assault. In a light
favorable to Doe, the admissible evidence would permit, but not
require, a fact finder to infer Alcala was a problem waiting to
happen. Brightstar hotly disputes this inference by pointing, for
instance, to Norlan Machado’s declaration that he had no basis
for suspecting Alcala had a propensity to harass women.
Machado called the allegations against him and Brightstar
“outrageous and insulting.” A fact finder must resolve this
conflicting evidence.
B
Duty is the second main issue. The parties dispute what
duty Brightstar owed Doe. For now we refer to the Machados
and Brightstar collectively as Brightstar, although we will treat
14
these three defendants individually in the final portion of this
opinion.
Formulating the contours of duty in tort law is a self-
conscious judicial effort to craft wise policy. (Tarasoff v. Regents
of University of California (1976) 17 Cal.3d 425, 442 (Tarasoff).)
This is a case of third-party criminality: Alcala is not in
this case but rather is a third party who intentionally attacked
Doe in a criminal way and directly caused injury for which Doe
seeks to hold Brightstar liable. These kinds of cases have been
common for generations. (E.g., Winn v. Holmes (1956) 143
Cal.App.2d 501, 505 [restaurant keepers may not sit idly by when
they know a customer is likely to be assaulted].)
For noncriminal defendants like Brightstar and the
Machados, the injury was something these defendants never
wanted. Rather, for Brightstar, this event was disastrous for
many reasons. But this does not mean Brightstar owed Doe no
duty.
We begin by summarizing Brightstar’s duty: it was to take
cost-effective measures to protect Doe from foreseeable harm
from people like the handyman. Viewing the evidence favorably
to Doe, Alcala indeed was a foreseeable and worrisome hazard,
and the toll of his possible attack on a disabled client could be
frightful. The array of Brightstar’s possible safety precautions all
involved costs that pale in comparison. Because the burden of
preventing this attack was relatively low while the benefit would
have been great, Brightstar had the duty, as a matter of law, to
contain the danger Alcala posed. (E.g., Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1210–1213 (Castaneda).)
Now we detail the analysis supporting this summary.
15
The tort doctrine of duty begins by recognizing Doe and
Brightstar were in a special relationship, which arises when a
victim has a legal right to expect protection from a defendant
that can control a dangerous third party’s conduct. (Brown v.
USA Taekwondo (2021) 11 Cal.5th 204, 216 (Brown).) Doe
rightly expected Brightstar to protect her. Protection was what
Brightstar claimed to offer. It was part of what it was being paid
to supply. Brightstar likewise could control Alcala in pertinent
ways. It determined whether and when Alcala would work at the
property and under what conditions and supervision. It could
replace him at will. Thus the relationship between Doe and
Brightstar was special.
Even when a special relationship exists, courts will not find
a duty where the factors of Rowland v. Christian (1968) 69 Cal.2d
108, 112–113 counsel against it. (See Brown, supra, 11 Cal.5th at
pp. 209, 217.) That is not the case here; the Rowland factors
counsel in favor of finding that Brightstar owed this duty to Doe.
Courts also will not require proposed safeguards that are
ineffectively onerous. (E.g., Castaneda, supra, 41 Cal.4th at pp.
1210–1213; see also Brown, supra, 11 Cal.5th at pp. 217–222
[analyzing potential limits to liability].)
The Castaneda opinion analyzed whether proposed safety
precautions were cost-justified. This approach is familiar and
authoritative. (E.g., Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1150, 1153 (Kesner) [courts assign tort duty to ensure those
best situated to prevent injuries are incentivized to do so];
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 238–250 [to
protect patron from crime, bar had duty to take minimally
burdensome steps but not costly security measures]; Morris v. De
La Torre (2005) 36 Cal.4th 260, 277–278 [proprietor’s duty to
16
patrons includes an obligation to call 911 about an ongoing
assault or to take similarly minimal safety measures]; Parsons v.
Crown Disposal Co. (1997) 15 Cal.4th 456, 473–475 [court
determined duty by conducting a “social utility analysis” that
weighs the utility of proposed safety measures against their
burdens]; Taylor, supra, 65 Cal.2d at pp. 123–124 [duty to protect
arose because defendant “easily” could have undertaken the
proposed protective measure]; Sinn v. Farmers’ Deposit Savings
Bank (1930) 300 Pa. 85, 90 [150 A. 163, 164] [same].)
This approach carries forward the reigning American
practice of formulating tort law to create rational incentives that
reduce the extent of injuries. California has used this approach
for nearly a century. (E.g., Berkovitz v. American River Gravel
Co. (1923) 191 Cal. 195, 199 [“it cannot be the intention of the
law that a watchman must be maintained over the rear light to
observe whether it is constantly burning”]; see Baker-Smith v.
Skolnick (2019) 37 Cal.App.5th 340, 345–346 [discussing
Berkovitz].)
Justice Roger Traynor articulated this approach in his
celebrated Escola opinion. (Escola v. Coca Cola Bottling Co.
(1944) 24 Cal.2d 453, 462 (Escola) (conc. opn. of Traynor, J.)
[public policy demands responsibility be fixed wherever it will
most effectively reduce injury hazards]; see also Greenman v.
Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63–64 (Traynor,
J.) [unanimous court adopts Escola]; Tarasoff, supra, 17 Cal.3d at
p. 442 [“The containment of such risks lies in the public
interest.”].)
After Justice Traynor broke trail, Professor (and now
Senior United States Circuit Judge) Guido Calabresi laid out the
incentive approach in his landmark 1970 book, The Costs of
17
Accidents (Calabresi). (See Kesner, supra, 1 Cal.5th at p. 1153
[applying and citing Escola and Calabresi].)
The approach has spread from California and Calabresi to
become national law. (See Air and Liquid Systems Corp. v.
DeVries (2019) __ U.S. __, __ [139 S.Ct. 986, 994–995] [majority
opinion determines tort duty by analyzing who is in the better
position to prevent the injury, citing Calabresi, supra]; id. at p.
997 (dis. opn. of Gorsuch, J.) [dissent does the same]; see
generally Sharkey, Modern Tort Law: Preventing Harms, Not
Recognizing Wrongs (2021) 134 Harv. L.Rev. 1423, 1423, fn. 3,
1435–1444.)
Some scholars claim a perspective of redressing wrongs
clashes with an incentive approach to tort law. (E.g., Goldberg &
Zipursky, Thoroughly Modern Tort Theory (2021) 134 Harv.
L.Rev. Forum 184, 184–199.) No party here argues that.
In sum, the trial court erred in ruling Brightstar owed Doe
no duty. The court similarly erred in concluding Doe could not
establish breach and causation. There was a material factual
dispute about whether keeping Alcala at Brightstar breached this
duty and caused Doe’s injuries.
C
Apart from Brightstar as a business entity, there also are
disputed material facts about the extent to which Mary and
Norlan Machado individually knew or reasonably should have
known about the hazard Alcala posed. We thus reverse the
summary judgment as to the Machados as individuals. (See, e.g.,
PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1372, 1379–
1380.)
18
DISPOSITION
We reverse the judgment for Brightstar Residential
Incorporated and for Mary and Norlan Machado. We remand the
matter for further proceedings consistent with this opinion. We
award costs to appellant Jane IL Doe.
WILEY, J.
We concur:
STRATTON, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
19