DocketNumber: Case No. 17-cv-03785-DMR
Citation Numbers: 351 F. Supp. 3d 1227
Judges: Ryu
Filed Date: 10/29/2018
Status: Precedential
Modified Date: 7/25/2022
This is a wrongful death action arising out of the death of Neil Lewis who was killed during an incident on July 7, 2015. Plaintiff Tiffany Hodges is the guardian ad litem to Lewis's minor children and sole heirs, D. Lewis and J. Lewis. Plaintiffs Karen Joyce Lewis and Alfredo Lewis are Lewis's parents. Plaintiffs filed this survival and wrongful death action against Defendants The Hertz Corporation ("Hertz"), Firefly Rent A Car LLC ("Firefly"), Rental *1231Car Transport, LLC ("RCT"),
I. EVIDENTIARY OBJECTIONS
Defendants object to the entirety of Plaintiffs' expert evidence, namely the Declaration of Lloyd D. Rae (Docket No. 73-1); the Expert Report of Kathleen Bonczyk, Esq. (Ex. 12); the Report of Aviation Security Expert Jeffrey C. Price, MA, CM (Ex. 32); and the Report of Premises Liability Expert Ron Martinelli, Ph.D., CLS (Ex. 36). Defendants also object to Exhibits 1, 2, 3-9, and 11-36 attached to the Declaration of Joseph P. Brent ("Brent Decl."). Plaintiffs filed an administrative motion for leave to file the Supplemental Brent Declaration, which addresses Defendants' objections to all but Exhibit 17 and attempts to cure the evidentiary deficiencies identified by Defendants. [Docket No. 82.] Exhibit 17 is addressed in Plaintiffs' Objections to New Evidence (Docket No. 79), which is discussed below.
A. Expert Declarations
Since the court did not consider Plaintiffs' expert declarations in determining whether summary judgment is proper, Defendants' objections are denied as moot.
B. Exhibits 1, 3-9, 11, 13-31, 33-35
Defendants object to Exhibits 1, 3-9, 11, 13-31, and 33-35 primarily on the grounds that they are not authenticated. Defendants also object on the basis of hearsay and lack of personal knowledge, but fail to make any arguments to support those objections. The court will therefore ignore the hearsay and personal knowledge objections for purposes of this motion.
The authenticity objections are overruled. Defendants argue that, even though the exhibits are attached to and described in the Brent Declaration, there is no "evidence" to substantiate "what any of the attached documents are or who any of the people are." Defs.' Reply at 1:20-22. However, it is clear from the description of each exhibit, and the exhibit themselves, that the documents are what they purport to be. See Fed. R. Evid. 901(b)(4) (a document's "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" is evidence sufficient to satisfy the authentication requirement). Additionally, many of these exhibits are Hertz's own documents and witness deposition testimony, and are also attached as exhibits to Defendants' request for judicial notice, so Defendants' objections are not well-taken. See, e.g. , Exs. 1, 8-9, 13-15, 18, 30, and 31. The court notes that Defendants' complaint about Plaintiffs' alleged failure to proffer evidence to authenticate these exhibits is also perplexing given that Defendants offered no evidence to authenticate many of their own exhibits.
Defendants cite Orr v. Bank of America, NT & SA ,
Defendants object to Rodney Williams's juvenile records (Exhibit 17) on the grounds that it is an unauthorized disclosure. The juvenile dependency court released these records pursuant a protective order which specified that the records could only be used in Williams's murder case, and permitted no other disclosure or use. Defs.' Reply at 5:6-22; Ex. 17 (Protective Order). Plaintiffs explain that they obtained Williams's juvenile record from the appellate record in his state court appeal from his murder conviction. Plt.'s Opp'n at 7:27-8:1; Plt.'s Objects. to New Evidence at 2:24-3:19 [Docket No. 79.] According to Plaintiffs, since the appellate record is open and available to the public, Williams's juvenile record may be used in other cases.
Plaintiffs' argument contravenes California law. California Welfare & Institutions Code Section 827(a)(4) provides that "[a] juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be disseminated by the receiving agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section."
In sum, the court overrules Defendants' objections as to Exhibits 1, 3-9, 11, 13-31, and 33-35. The court sustains the objection to Exhibit 17. Plaintiffs' administrative motion for leave to file the supplemental declaration is denied as moot.
II. REQUEST FOR JUDICIAL NOTICE
The parties each submitted a request for judicial notice ("RJN"). Defendants' unopposed request asks that the court take judicial notice of Exhibit 6(A) through (F). [Docket No. 62-6 (Defs.' RJN).] Plaintiffs' opposed request asks that the court take judicial notice of Exhibits 1 and 2. [Docket No. 73-2 (Plt.'s RJN).]
Federal Rule of Evidence 201 permits a court to take judicial notice of facts not subject to reasonable dispute and "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "[A] court may take judicial notice of 'matters of public record.' " Lee v. City of Los Angeles ,
The court grants Defendants' unopposed request for judicial notice of Exhibit 6(A), which is Plaintiffs' original complaint filed in San Francisco Superior Court, Hodges et al. v. The Hertz Corp. et al. , No. CGC 17-55304 (San Francisco Super. Ct).
The court grants Defendants' unopposed request as to Exhibits 6(B) through 6(F) because they are documents filed in Rodney Williams's state criminal proceedings including the state proceeding arising out of the incident underlying this action (Lewis's death), and are relevant to the issues raised in Defendants' motion. See U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc. ,
The court grants Plaintiffs' request for judicial notice of Exhibit 1 because it is a matter of public record. Exhibit 1 is Sections 2A.170 and 2A.173 of the San Francisco Administrative Code. Chew v. City & Cty. of San Francisco , No. 13-CV-05286-MEJ,
The court grants Plaintiffs' request as to Exhibit 2, but only as to the existence of the documents, the date of the documents, and the existence of the contents contained therein, but not for the truth of the matters asserted in the contents. Exhibit 2 consists of portions of the Resolution, Budget and Legislative Analyst Report/Agency Cover Letter and/or Report of the San Francisco Board of Supervisors regarding the approval of leases for Defendants at San Francisco International Airport. See Cal. Sportfishing Prot. All. v. Shiloh Grp., LLC ,
Defendants object to Plaintiffs' request for judicial notice of Exhibit 2 on grounds of hearsay, authenticity, and lack of personal knowledge. Since the court takes judicial notice only as to the existence of the contents of Exhibit 2, and not the truth of the matters contained therein, Defendants' hearsay and lack of personal knowledge objections are overruled as moot. Defendants' authenticity objection is overruled because Defendants do not explain why the accuracy of Exhibit 2 cannot readily be determined by resort to the San Francisco Board of Supervisors' records, which are public. See Yamauchi v. Cotterman ,
III. BACKGROUND
This wrongful death action arises out of a July 7, 2015 incident involving RCT employees Neil Lewis and Rodney Williams that occurred near a Hertz rental car facility at San Francisco International Airport ("SFO") and resulted in Lewis's death. RCT is in the business of providing "hikers" to rental car companies such as Hertz. Hikers transport rental cars to and from rental car facilities and the airport. Williams and Lewis were RCT hikers who transported Hertz rental vehicles between Hertz's rental facility and SFO. On the day of the incident, Williams and Lewis each drove Hertz vehicles to an area near the Hertz rental car facility at SFO and engaged in a physical altercation. During the fight, Williams fatally stabbed Lewis. Williams subsequently was convicted of second degree murder for Lewis's death. Plaintiffs seek to hold Defendants liable for Lewis's death. They assert various theories of negligence, including Defendants' failure to require RCT to adhere to reasonable hiring practices such as conducting pre-employment criminal background checks, and failure to adequately supervise and control RCT.
A. Facts
1. Hertz's Corporate Structure
Hertz, DTG, Dollar Thrifty and Firefly are rental car companies that own and operate their own rental car brands.
2. Hertz's Operations at SFO
Hertz operates the Hertz, Dollar, and Thrifty on-site rental car facilities at SFO pursuant to lease agreements with the City and County of San Francisco. See Lease Agreement for Rental Car Operations by and between The Hertz Corporation, as tenant, and City and County of San Francisco Acting By and Through Its Airport Commission, as landlord (Ex. 1) to Brent Decl. ("Hertz SFO Lease Agreement"), § 3.1 ("Tenant shall use the Premises for the operation of a rental car business pursuant to the Lease and for no other purpose ("Permitted Use ").") (bold in original); Lease Agreement for Rental Car Operations by and between DTG Operations, Inc. and City and County of San Francisco Acting By and Through Its Airport Commission (Ex. 3) to Brent Decl. ("DTG SFO Lease Agreement"), § 3.1 (same).
Pursuant to the SFO Lease Agreements, Hertz and DTG agreed that their use, including their "Tenant's Entity's" use and operation of the leased rental car facilities would comply "at all times with all Laws," which include various federal, state and municipal safety-related laws including SFO's Rules and Regulations referred as the Airport Rules. Hertz SFO Lease Agreement, § 3.14; DTG SFO Lease Agreement, § 3.14.
3. Hertz's Contracts with Hiker Companies
During the relevant time period, Hertz hired three companies to provide hikers for its SFO rental car facility: RCT, FleetLogix (July 1, 2014 - April 2016), and EDS Facility Services, Ltd. ("EDS") (November 9, 2016 to the present). FleetLogix and EDS signed a Master Service Agreement ("MSA") with Hertz, but RCT did not. See FleetLogix MSA (Ex. 11) to Brent Decl. (under seal); EDS MSA (Ex. 28) to Brent Decl. (under seal).
Pursuant to the MSAs, FleetLogix and EDS, who are "Suppliers," agreed to provide "Transporters/Service Agent services to the Hertz location" at SFO, and to "provide the Services using Supplier Employees who met "each of the Hertz requirements as set forth herein or as may be requested from time to time." FleetLogix MSA, Ex. A, ¶ 8 at HERTZ 00709; EDS MSA, Ex. A, ¶ 8 at HERTZ 00757. Such Hertz requirements included "perform[ing] the Services in a safe and sufficient manner; agree[ing] to comply with each of Hertz' policies, rules and regulations regarding conduct, appearance, and behavior while performing the Services or on Hertz premises or facilities," and "passing a pre-employment criminal record check."
4. Hertz's Relationship with RCT
Hertz's relationship with RCT began as a continuation of RCT's preexisting relationship with DTG. Prior to Hertz's acquisition of DTG and Dollar Thrifty, RCT provided hikers to DTG at its San Diego and SFO rental car facilities. Following the acquisition, DTG's supervisors communicated to Hertz's corporate management that RCT had a good reputation and history with DTG. Harvey, Hertz's Vice President, had a conversation with DTG's supervisors regarding RCT's performance to determine whether Hertz should continue DTG's relationship with RCT. DTG's supervisors told Harvey that RCT performed just fine. Based on these assurances, Hertz continued DTG's relationship with RCT and did not enter into a new agreement with RCT. Although it is not clear whether anyone reviewed RCT's contract with DTG on Hertz' behalf, Harvey testified that he personally did not review the contract because RCT was already a vendor for DTG, which was a reputable company. It is not clear whether Hertz inquired into whether DTG imposed requirements on vendors similar to those imposed by Hertz, including a pre-employment criminal background check. However, Harvey testified that he assumed that DTG had similar requirements including a pre-employment criminal background check, and did not further investigate because he did not feel it was necessary given that DTG was a reputable company.
The parties dispute whether and to what degree Hertz was involved in RCT's operations, namely hiring, firing, and how RCT employees performed their job for Hertz. The court summarizes the relevant evidence in the discussion of the parties' arguments further below.
5. Williams's Employment at RCT
On September 22, 2014, Williams applied for a position as a car washer for RCT. Williams Application for Employment (Ex. 23) to Brent Decl. On the application, Williams checked the box stating that he had prior felony convictions, and noted *1237that he "would explain later."
RCT hired Williams as a car washer, but there is no evidence establishing his date of hire. Additionally, there is no evidence that RCT ever asked Williams about his prior felony convictions. Tom Coe, who is RCT's founder and manager, testified that he did not recall if Williams was interviewed or asked about his prior felony convictions. During his employment with RCT, Williams became a hiker.
6. The July 7, 2015 Incident
The July 7, 2015 incident stems from rising tensions between Lewis and Williams over Lewis's contact with Williams's girlfriend. According to the trial testimony of Lewis's co-workers and friends at Williams's murder trial, prior to July 7, Lewis complained that he had been receiving threats from a male co-worker (later identified as Williams), who believed that Lewis was texting his girlfriend. See, e.g. , Trial Testimony of Melvin Boyd, K. Bishop, M. Lewis (Exs. 33, 34 and 35) to Brent Decl. There is no evidence that Lewis told any RCT or Hertz manager about these threats prior to his death.
According to Williams, on the day of the incident, Lewis confronted him about their dispute at the end of their work shift, and said, "Go around the corner and handle it now." Williams Trial Test. (Ex. 6(f) ) to Defs.' RJN at 693:4-17, 695:2-4. Both men, driving Hertz vehicles, exited the Cowen street parking lot and made a right turn instead of making a left as hikers normally would do. They engaged in a fight, during which Lewis was fatally stabbed. Williams fled the scene, and was eventually arrested and convicted of Lewis's murder.
B. Procedural History
On June 5, 2017, Plaintiffs filed this case against Defendants in San Francisco Superior Court. [Docket No. 1-1 (Compl. to Not. of Removal).] Defendants removed the action on June 30, 2017. Not. of Removal [Docket No. 1 (Not. of Removal).] Upon removal, Plaintiffs filed the operative amended complaint, which substituted DTG and Dollar Thrifty as Doe Defendants 1 and 2. [Docket No. 29 (Amended Compl.).] On August 9, 2018, Defendants filed this motion. [Docket No. 61.] Plaintiffs timely opposed. [Docket Nos. 72, 73.]
IV. LEGAL STANDARD
A court shall grant summary judgment "if ... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett ,
To defeat summary judgment once the moving part has met its burden, the nonmoving party may not simply rely on the pleadings, but must produce significant probative evidence, by affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that a genuine issue of material fact exists. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n ,
V. CLAIMS NO LONGER AT ISSUE
In their opposition, Plaintiffs do not address Defendants' arguments regarding punitive damages, and therefore concede that claim. Accordingly, the court grants summary judgment in favor of Defendants on the punitive damages claim.
VI. DISCUSSION
Defendants move for summary judgment on all claims. First, they argue that they are not vicariously liable for the actions of RCT and its employee Williams as a matter of law. Next, Defendants argue that they are not liable for the actions of RCT and Williams on a theory of direct negligence because they did not owe any legal duty to Lewis. Plaintiffs contend that there are genuine disputes of material facts as to whether Defendants are vicariously liable for the actions and/or inactions of RCT and its employee Williams. They also argue that Defendants owed a duty to Lewis to use due care, and there are triable disputes regarding foreseeability and causation that preclude summary judgment on the direct negligence claim.
A. Hertz's Vicarious Liability
Defendants argue that they have no vicarious liability for the acts of Williams, who was an RCT employee. Their arguments build from the premise that a hirer (Hertz) of an independent contractor (RCT) is not generally liable for the actions of the independent contractor under California law. Defendants concede that there are a number of exceptions to the "no hirer liability" rule, but assert that Plaintiffs cannot demonstrate that they meet any of the six exceptions that they anticipate Plaintiffs will raise. For their part, Plaintiffs concede that RCT is an independent contractor and that Defendants generally are not liable for the actions of independent contractors such as RCT. Instead, they argue that there are genuine disputes of material fact as to three exceptions to the no-hirer liability rule: the exception outlined in Hooker v. Department of Transportation ,
1. The Hooker Exception
The common law provides that a " 'person who hire[s] an independent contractor generally [is] not liable to third parties for injuries caused by the contractor's negligence in performing the work.' "
*1239SeaBright Ins. Co. v. US Airways, Inc. ,
Hooker involved the death of a crane operator who was employed by a general contractor that had been hired by Caltrans to construct an overpass.
The California Supreme Court declined to find Caltrans liable, holding that "a hirer of an independent contractor is not merely liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite." Id. at 202,
As to affirmative contribution through negligent omission, the Hooker court explained a hirer's liability as follows: "For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury."
*1240Hooker itself involved the active participation theory. The California Supreme Court found that there was no evidence that Caltrans directed, "in the sense of ordered," the decedent to retract the outriggers in order to permit vehicles to pass. Id. at 213,
In sum, under the Hooker exception, the hirer of an independent contractor is liable to an employee of the contractor if the "hirer retained control over the safety conditions at the worksite," and its "exercise of retained control affirmatively contributed to the employee injuries." Id. at 202,
Plaintiffs assert that Defendants are liable based on the negligent omission theory. Plt.'s Opp'n at 18:7-19:7. However, because Plaintiffs' arguments implicate certain theories discussed in cases addressing the active participation theory, the court briefly discusses those cases, along with cases addressing the negligent omission theory.
California courts routinely have found that the hirer of an independent contractor actively directs a contractor or the employee of the contractor where the hirer supplies the contractor with defective equipment, or controls a material aspect of the worksite. See, e.g. , McKown v. Wal-Mart Stores, Inc. ,
*1241finding triable disputes existed as to whether the general contractor exercised "retained control" over safety where the general contractor contractually reserved exclusive control over closing the roadway and prevented subcontractor from closing it without written consent).
However, where a contractor "passively permit[s] an unsafe condition to occur," California courts have concluded that such inaction does not constitute affirmative contribution without more. Tverberg v. Fillner Constr. ,
As to the negligent omission theory, there is a dearth of case law addressing when a hirer may be liable for negligently failing to undertake or perform a promised safety measure. The few existing cases demonstrate that a hirer's promise to undertake a particular safety measure may be explicit or implicit.
For example, in Tverberg , the employee of a subcontractor sued the general contractor for injuries he sustained when he fell into a hole made for a bollard (concrete post).
*1242Regarding the contractor's negligent omissions, the court explained that certain testimony "allow[ed] the inference that [the contractor] affirmatively assumed the responsibility for the safety of the workers near the bollard holes, and discharged that responsibility in a negligent manner, resulting in injury." Id. at 1448,
In Browne v. Turner Construction Co. ,
a. Retained Control
In sum, under the Hooker exception, Hertz may be liable to Lewis, the deceased employee of RCT, if Hertz retained control over RCT in a manner that affirmatively contributed to Lewis's death, either through Hertz's active participation or negligent omission. Defendants first contend that there is no evidence that Hertz retained control over any material aspects of RCT's operations, including the hiring, firing, training, and scheduling of RCT employees. Plaintiffs disagree, arguing that the record is replete with evidence showing that Hertz exercised control in almost every facet of RCT's operations. Having reviewed the record, the court finds that there are triable disputes as to whether Hertz retained control over RCT's performance of its work, including safety-related issues.
For example, there are triable disputes as to whether Hertz could direct RCT to fire an RCT employee.
There are also triable disputes as to whether Hertz controlled the manner in which RCT hikers performed their work for Hertz. For example, Defendants contend that Hertz was not otherwise involved in the daily operations of RCT, and cite as examples the fact that Hertz was not involved in the scheduling of specific RCT drivers for the hours they needed, and Hertz did not communicate with RCT employees. However, Smith testified that she and Lewis and Williams did "whatever Hertz told [them] to do." Smith Depo. (Ex. 25) to Brent Decl. at 56:17-21; Smith Decl. ¶ 4. Smith testified that she and other lead drivers received direction on what to do with the rental vehicles at SFO from Hertz or DTG dispatchers and managers, and that she would then tell other RCT employees including Lewis and Williams what their jobs were for the day. She also testified that if Hertz needed RCT employees to perform a task, it could ask for a specific employee by name. On occasion, a Hertz dispatcher asked an RCT employee named Ratish to take customers to the airport, because Ratish was known as a peaceful and kind person.
There are also triable disputes as to whether Hertz required RCT hikers to perform their work in a safe manner. Such disputes could form the basis for a reasonable jury to infer that Defendants retained control over the safety conditions of the job. Hertz's Rule 30(b)(6) deponent testified that Hertz expected contractors such as RCT to follow Hertz's safety precautions including its lot rules, as well as rules relating to the speed limit, seat belts, parking in certain locations, driving in certain traffic patterns, and leaving keys at a certain place or in the car. Smith testified that Hertz and DTG controlled how she and other RCT employees, including Lewis and Williams, performed their work in many ways, including how to drive their vehicles. Smith testified that Hertz's instructions to RCT employees included how fast they could drive Hertz vehicles, where they could drive Hertz vehicles, the routes they could take inside SFO with Hertz vehicles, the places where they could park Hertz vehicles, the places they could wash Hertz vehicles, the stalls in which they had to park Hertz vehicles, which Hertz vehicles should be washed, when the headlights had to be turned on in Hertz vehicles, when to set the parking brake, when RCT employees could listen to the radio in *1244Hertz vehicles, what settings to leave the air condition/heat fan on, when RCT employees had to wear seat belts, where to smoke cigarettes (RCT employees were not permitted to smoke cigarettes in Hertz vehicles), and how and when to clean the interior of Hertz vehicles. She also testified that Hertz instructed RCT on proper attire for its employees driving Hertz vehicles; specifically, RCT employees could not wear shorts and men could not wear baggy pants or hats.
In sum, there are triable disputes on the question of whether Defendants retained control over safety conditions for RCT hikers.
b. Affirmative Contribution
Defendants next argue that even if Hertz retained control over RCT safety conditions, there is no evidence that Hertz retained control in a manner that affirmatively contributed to Lewis's death. Defendants assert that Williams's murder of Lewis was an independent act that was completely unrelated to the control that Defendants exercised over RCT's work. Plaintiffs counter that Defendants affirmatively contributed to Lewis's death by failing to implement specific safety measures on RCT, including pre-employment criminal background checks, even though Defendants implemented such procedures on its two other hiker contractors.
Under California law, "the failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures." Tverberg ,
Plaintiffs cite to Browne to support their argument that Defendants affirmatively removed safeguards that were normally in place that would have prevented Lewis's death. In Browne , the California Court of Appeal found that the general contractor was liable for furnishing and then withdrawing the safety equipment that resulted in the employee's fall.
In this case, there is a triable dispute as to whether Hertz implicitly agreed or promised to undertake a specific safety measure, namely requiring all contractors including RCT to perform pre-employment criminal background checks on its employees. The record shows that Hertz had a business practice of requiring contractors such as RCT to sign an MSA. See FleetLogix MSA (Ex. 11) to Brent Decl. (under seal); EDS MSA (Ex. 28) to Brent Decl.
*1245(under seal). Pursuant to the MSAs, the contractors each agreed to "provide the Services using Supplier Employees who met "each of the Hertz requirements as set forth herein or as may be requested from time to time." FleetLogix MSA, Ex. A, ¶ 8 at HERTZ 00709; EDS MSA, Ex. A, ¶ 8 at HERTZ 00757. Such Hertz requirements include "passing a pre-employment criminal record check."
Defendants cite Montgomery v. United States ,
Defendants also argue that the California Supreme Court's decision in Camargo v. Tjaarda Dairy ,
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will *1246involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.
Restatement (Second) of Torts § 411 (1965) (emphasis added). The theory dismissed in Camargo was that the hirer negligently hired the contractor. Camargo ,
In sum, the court finds that there are triable disputes as to whether Defendants are vicariously liable to Plaintiffs on the theory that Hertz negligently exercised its retained control through negligent omission to impose a safety rule on RCT that it imposed on its other hiker contractors. The court therefore denies summary judgment on this basis. As the case may proceed to trial due to the existence of material disputed facts regarding application of the Hooker exception, the court declines to rule on the two other exceptions to the "no hirer liability" rule proffered by Plaintiffs (i.e., non-delegable duties based on contractual relationship and public authority/franchise). The court expresses serious doubt that either of the two remaining exceptions apply here. If Plaintiffs intend to pursue either of these two remaining theories of exception to the "no hirer liability" rule, they must notify Defendants within two days (by October 31, 2018) so that Defendants have an opportunity to challenge the theor(ies) at the pretrial stage. If Plaintiffs do not timely notify Defendants of the intent to pursue the theor(ies), the court will assume that Plaintiffs have abandoned the theor(ies).
B. Hertz's Direct Negligence
Defendants argue that they are not liable to Lewis on a direct negligence theory because they owed no duty to Lewis. They also assert that even if the court concludes that a duty exists, Plaintiffs cannot satisfy the causation element of a negligence claim because Williams's stabbing of Lewis is a superseding cause that cuts the causal link between Defendants and Lewis. Plaintiffs disagree, contending that Defendants owed a duty to Lewis to use due care based on Hertz's own business practices, and the special relationship between Defendants and Lewis created by the SFO Lease Agreements. They also argue that there are triable disputes regarding foreseeability and causation that preclude summary judgment.
1. Duty
a. Legal Principles
"[N]egligence is conduct which falls below the standard established by law for the protection of others." Burns v. Neiman Marcus Grp., Inc. ,
*1247California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. Cal. Civ. Code, § 1714(a) ; Cabral v. Ralphs Grocery Co. ,
To determine whether a duty exists, courts consider the following factors, known as the " Rowland factors": "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." Rowland v. Christian ,
b. Analysis
Plaintiffs assert that Defendants owed a duty to Lewis on two bases: 1) as a third-party beneficiary to the SFO Lease Agreements; and 2) by failing to enforce their own standard business practices on RCT.
Plaintiffs argue that the SFO Lease Agreement created a special relationship between Hertz and Lewis because Sections 3.09 and 3.14 intended to benefit Lewis. Under these sections, Hertz agreed that it and its contractors such as RCT would comply with all laws including a number of workplace safety laws, and that it would not conduct business that interfered with airport safety. Hertz SFO Lease Agreement, §§ 3.09, 3.14. Plaintiffs contend that Lewis would have clearly benefitted from Defendants' obligation to ensure that RCT complied with all workplace safety laws, including complying with Hertz's own standard business practice to require contractors to perform pre-employment criminal background checks as part of the hiring process.
Plaintiffs' arguments fail. With respect to their theory that Lewis is a third-party beneficiary to the SFO Lease Agreements, *1248Plaintiffs present no evidence that the SFO Lease Agreements were intended to benefit the employees of contractors to the lease holder. In fact, the SFO Lease Agreements specifically and unambiguously state that there "are no third-party beneficiaries to this Lease." See, e.g. , Hertz SFO Lease Agreement, § 19.8. Given the agreement's explicit disclaimer of any third-party beneficiaries, the court finds that Plaintiffs' interpretation of the SFO Lease Agreements is untenable and cannot be the basis for a duty under California law.
Plaintiffs next argue that Defendants "created a risk of harm" to Lewis by negligently failing to enforce their standard business practices on RCT, specifically the requirement to conduct pre-employment criminal background checks as part of the hiring process. Plaintiffs point to evidence that Hertz had an established business practice of requiring its other hiker contractors to perform pre-employment criminal background checks in the hiring process, but that it negligently failed to enforce that requirement on RCT. Plaintiffs contend that Hertz's decision not to require such background checks allowed RCT to hire Williams, which resulted in the death of Lewis. As discussed above, the court can only find that Defendants owed a duty of care to Lewis by applying the Rowland factors and determining at a generalized (rather than fact-specific) level that imposing such a duty is justified by clear considerations of policy. Here, Plaintiffs make no effort to apply the Rowland factors, and the court is not required to guess at what their arguments might be. Plaintiffs' argument fails on that basis alone.
Instead of addressing the Rowland factors, Plaintiffs rely on general language regarding duty in Seo v. All-Makes Overhead Doors ,
Therefore, the court finds that Plaintiffs have not established that Defendants owed a duty to Lewis.
In sum, the court grants summary judgment in favor of Defendants as to the direct negligence claim.
C. Plaintiffs' Objections to Defendants' Reply
In their reply, Defendants responded to the arguments in Plaintiffs' opposition, and attached additional evidence that was not included in the moving papers. Reply [Docket No. 75.] Plaintiffs filed a document entitled "Objections to New Evidence" pursuant to Local Rule 7-3(d), and included their own rebuttal arguments and evidence. [Docket No. 79.]
Local Rule 7-3(d) prohibits a party from filing additional memoranda, papers, or letters once a reply is filed without court approval unless new evidence has been submitted in the reply. Civ. L.R. 7-3(d)(1).
*1249If a new evidence is submitted with the reply, the plaintiff may file an objection to the reply evidence, "which may not exceed 5 pages of text, stating its objections to the new evidence, [and] which may not include further argument on the motion."
Plaintiffs' submission is problematic. Although styled as an "Objection to New Evidence," Plaintiffs' filing amounts to an unauthorized sur-opposition in disguise. It contains no objections to the new evidence. Indeed, Plaintiffs' concluding paragraph asks the court to deny Defendants' motion, as opposed to sustaining its objections to the new evidence. Plt.'s Objects. at 4:9-11. Since Plaintiffs did not obtain prior leave to court to file a sur-opposition, it would be within the court's discretion to disregard it. Civ. L.R. 7-3(d); see, e.g. , Heineke v. Santa Clara Univ. , No. 17-CV-05285-LHK,
To the extent that Plaintiffs' objections can be construed as a request to strike evidence presented in a reply brief, the court has the discretion to consider new evidence presented on reply, particularly if the new evidence appears to be a reasonable response to the opposition. See Edgen Murray Corp. v. Vortex Marine Constr., Inc. , No. 18-CV-01444-EDL,
VII. CONCLUSION
In conclusion, the court grants in part and denies in part Defendants' motion.
IT IS SO ORDERED.
Plaintiffs voluntarily dismissed RCT on January 31, 2018. [Docket No. 27.]
Defendants also quote the Eighth Circuit's decision in Hoffman v. Applicators Sales and Serv., Inc. ,
Defendants' reply brief contains a conclusory paragraph titled, "No Liability for Firefly, DTG Operations, Inc., Dollar Thrifty Automotive Group." Defendants argue that Firefly, DTG, and Dollar Thrifty should be dismissed because Plaintiffs fail to explain how these entities are connected to the incident underlying this action. Reply at 15:11-17. The court declines to dismiss these Defendants at this time. Defendants did not clearly move for summary judgment on this basis and may not raise arguments for the first time on reply.
Although the parties did not clearly explain the relationship between DTG and Dollar Thrifty, and seem to interchangeably refer to them as "Dollar Thrifty," it appears that DTG and Dollar Thrifty are separate but related companies, and both companies operate the Dollar and Thrifty rental car brands. Firefly is a Hertz subsidiary that owns and operates the Firefly rental car brand.
Plaintiffs cite to deposition testimony in which Harvey purportedly explains that Firefly's corporate status is the same as DTG and Dollar Thrifty, but they do not provide those pages of Harvey's deposition in the excerpts filed as Exhibit 2.
These collectively are referred to as the "SFO Lease Agreements."
Since Firefly's business permit is for off-airport services, it does not contain similar provisions.
The parties provided little assistance to the court, as their briefing was particularly cursory on the Hooker exception. There are key active participation and negligent omissions case that they should have discussed in their papers, beyond the two cases (one per side) that they cited.
Plaintiffs appear to concede that RCT controls the hiring of its own employees since they do not address this practice in their opposition.
Plaintiffs also argue in one conclusory sentence that Hertz is directly liable to Lewis for negligence per se because it aided and abetted RCT in violation of Airport Rule 9.2. Plt.'s Opp'n at 21:15-17. Since Plaintiffs' complaint does not plead or allege a negligence per se claim, the court declines to consider this new theory.