Filed 2/21/14

                             CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA


SARA MONTAGUE et al.,                             D063385

        Plaintiffs and Appellants,

        v.                                        (Super. Ct. No. 37-2012-00090137-
                                                  CU-PO-CTL)
AMN HEALTHCARE, INC.,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County, Steven

Denton, Judge. Affirmed.


        The Law Offices of Samuel Dagan, Samuel Dagan and Lisa Dearden Trepanier for

Plaintiffs and Appellants.

        Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport; Susson, Parrett & Odell,

Steven R. Odell and Edward L. Schumann, for Defendants and Respondents.


        In this case, a staffing company hired an employee to work as a medical assistant

and then assigned that employee to work at a customer's facility. While at the customer's

facility, the employee poisoned a coworker. The coworker sued the staffing company
alleging theories of vicarious liability and negligence. We conclude the trial court

properly granted summary judgment in favor of the staffing company because the

employee acted outside the course and scope of her employment.

                     FACTUAL AND PROCEDURAL BACKGROUND

          AMN Healthcare, Inc., dba Nursefinders (Nursefinders) is a staffing company that

provides prescreened nurses and medical personnel to hospitals and other facilities.

Nursefinders hired Theresa Drummond as a medical assistant. It later assigned

Drummond to work at a Kaiser facility as a medical assistant. Plaintiff Sara Montague

was also a medical assistant at Kaiser. At some point, Drummond and Montague had a

disagreement at work regarding how rooms were to be stocked. At the end of the

discussion Montague walked away. Montague did not consider the argument serious

enough to report to a supervisor or anyone else. They also had a discussion regarding

misplaced lab slips where Drummond raised her voice. A few weeks after that

discussion, Montague left her water bottle at work. Montague later drank from her water

bottle. Her tongue and throat started to burn and she vomited. Drummond admitted that

she poured carbolic acid found in a Kaiser examination room into Montague's water

bottle.

          Montague and her husband sued Drummond and Nursefinders. As to

Nursefinders, she alleged causes of action for negligence, battery, negligence per se and

intentional infliction of emotional distress under a theory of respondeat superior. She

also alleged that Nursefinders negligently hired, retained, supervised and trained

Drummond. Montague's husband alleged a claim for loss of consortium.


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       Nursefinders moved for summary judgment or in the alternative, summary

adjudication of all causes of action, arguing that the causes of action based on respondeat

superior liability fail because Drummond (1) was a special employee of Kaiser, or (2)

acted outside the course and scope of her employment. It also asserted that no triable

issues existed on Montague's negligence claim and the lack of a viable cause of action

precluded a derivative loss of consortium claim.

       The trial court tentatively granted the motion, finding the claims based on

respondeat superior liability failed because undisputed evidence established that

Drummond was a special employee of Kaiser. It also concluded that Montague did not

establish a triable issue of fact regarding negligent hiring, retention or supervision and

that her claim regarding negligent training failed based on lack of causation. The court

entered a judgment in favor of Nursefinders and Montague timely appealed contending

triable issues of material fact precluded summary judgment.

                                       DISCUSSION

                                   I. Standard of Review

       A motion for summary judgment is properly granted when there are no triable

issues of material fact and the moving party is entitled to judgment as a matter of law.

(Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo

and decide independently whether the undisputed facts warrant judgment for the moving

party. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) When analyzing the

underlying motion, we apply the same three-step analysis used by the trial court. (Bono

v. Clark (2002) 103 Cal.App.4th 1409, 1431-1432.) We identify the issues framed by the


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pleadings, determine whether the moving party has negated the opponent's claims, and

determine whether the opposition has demonstrated the existence of a triable, material

factual issue. (Id. at p. 1432.)

       "We will affirm an order granting summary judgment or summary adjudication if

it is correct on any ground that the parties had an adequate opportunity to address in the

trial court, regardless of the trial court's stated reasons." (Securitas Sec. Services USA,

Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.) Accordingly, even when the

trial court does not rule on an argument properly presented in summary judgment

proceedings, we may nonetheless consider it on appeal. (Gordon v. Havasu Palms, Inc.

(2001) 93 Cal.App.4th 244, 255.)

                           II. Vicarious Liability Causes of Action

       " 'Where an employer sends an employee to do work for another person, and both

have the right to exercise certain powers of control over the employee, that employee

may be held to have two employers—his original or "general" employer and a second, the

"special" employer.' " (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174-175.) A

general employer is absolved of respondeat superior liability when it has relinquished

total control to the special employer. (Brassinga v. City of Mountain View (1998) 66

Cal.App.4th 195, 216.) During this period of transferred control, the special employer

becomes solely liable under the doctrine of respondeat superior for the employee's job-

related torts. (Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 984.)




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       Here, the trial court found the undisputed evidence established that Nursefinders

was absolved of any respondeat superior liability because Drummond was a special

employee of Kaiser and had no control over the injury producing event. We need not

address this issue because, even assuming Nursefinders retained some control over

Drummond so as to render it jointly and severally liable for Drummond's acts,

Montague's vicarious liability claims fail on the alternative ground that Drummond acted

outside the course and scope of her employment. Although the trial court did not rule on

this argument, Montague addressed the issue in her opposition to the motion. Both

parties also addressed the issue in their briefing on appeal. (Code Civ. Proc., § 437c,

subd. (m)(2).)

       Under the doctrine of respondeat superior, "an employer is vicariously liable for

the torts of its employees committed within the scope of the employment." (Lisa M. v.

Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.).) The

plaintiff bears the burden of proving that the employee's tortious act was committed

within the scope of his or her employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d

707, 721.) "Ordinarily, the determination whether an employee has acted within the

scope of employment presents a question of fact; it becomes a question of law, however,

when 'the facts are undisputed and no conflicting inferences are possible.' " (Mary M. v.

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

       Although an employee's willful, malicious, and even criminal torts may fall within

the scope of employment, "an employer is not strictly liable for all actions of its

employees during working hours." (Farmers Ins. Group v. County of Santa Clara (1995)


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11 Cal.4th 992, 1004 (Farmers).) For the employer to be liable for an intentional tort, the

employee's act must have a "causal nexus to the employee's work." (Lisa M., supra, 12

Cal.4th at p. 297.) Courts have used various terms to describe this causal nexus: the

incident leading to the injury must be an " 'outgrowth' " of the employment; the risk of

tortious injury must be " ' "inherent in the working environment" ' "; the risk must be

" ' "typical" ' " or " ' "broadly incidental" ' " to the employer's business; the tort was " 'a

generally foreseeable consequence' " of the employer's business. (Id. at pp. 298-299.)

       " 'One way to determine whether a risk is inherent in, or created by, an enterprise

is to ask whether the actual occurrence was a generally foreseeable consequence of the

activity.' " (Farmers, supra, 11 Cal.4th at pp. 1003-1004, italics omitted.)

" '[F]oreseeability' [in the context of determining scope of employment] merely means

that in the context of the particular enterprise an employee's conduct is not so unusual or

startling that it would seem unfair to include the loss resulting from it among other costs

of the employer's business.' " (Id. at p. 1004, italics omitted.)

       These various terms have been condensed into a two-prong disjunctive test.

(Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559, 1561 ["the two-prong test is

substantively similar to the foreseeability-based test"].) The conduct of an employee falls

within the scope of his or her employment if the conduct either: (1) is required by or

incidental to the employee's duties, or (2) it is reasonably foreseeable in light of the

employer's business. (Id. at p. 1559; see CACI No. 3720.)




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       Nursefinders presented evidence that it is a staffing agency that Drummond did

not work for; rather, Drummond applied for medical assistant positions through

Nursefinders. Drummond obtained a medical assistant position at Kaiser through

Nursefinders. This evidence satisfied Nursefinders initial burden of showing that

Drummond's acts were not required by or incidental to her employment with

Nursefinders or that her acts were reasonably foreseeable in light of Nursefinders's

business. Accordingly, the burden of production shifted to Montague. (Code Civ. Proc.,

§ 437c, subd. (p)(2).)

       We first consider whether Montague presented evidence showing that

Drummond's acts were required by or incidental to her employment with Nursefinders.

In evaluating this factor, occupational duties are broadly defined. (Alma W. v. Oakland

Unified School Dist. (1981) 123 Cal.App.3d 133, 139 (Alma W.) "The fact that an

employee is not engaged in the ultimate object of his employment at the time of his

wrongful act does not preclude attribution of liability to an employer. [Citation . . .

However, that is not to say, that employers are strictly liable for all actions of their

employees during working hours. If an employee substantially deviates from his duties

for personal purposes, the employer is not vicariously liable for the employee's actions."

(Id. at p. 139.)

       Montague presented no evidence regarding the scope of Drummond's employment

with either Nursefinders or Kaiser. While Drummond testified she generally knew that

carbolic acid was used for patients with foot issues, it is unknown what job duties




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Drummond had at Kaiser and whether her duties involved the use of carbolic acid. It is

also unknown whether Drummond committed the poisoning during working hours.

       We next consider whether Montague presented evidence showing Nursefinders

could have reasonably foreseen that Drummond would poison a coworker at Kaiser.

First, Drummond testified that she "poured" the carbolic acid into Montague's water

bottle. Although Montague argues this evidence supports an inference that Drummond

acted negligently, Drummond's testimony is not subject to differing inferences and

establishes she committed an intentional act. (Evid. Code, § 600, subd. (b) ["An

inference is a deduction of fact that may logically and reasonably be drawn from another

fact or group of facts found or otherwise established in the action."].)

       An injury arising out of a work-related dispute has such a causal nexus, while an

injury inflicted out of the employee's personal malice, not engendered by the

employment, does not. (Lisa M., supra, 12 Cal.4th at pp. 297-298.) Montague asserts

summary judgment is not appropriate because the evidence shows the poisoning arose out

of a work-related dispute. The evidence shows that a few weeks or months before the

incident, Drummond and Montague had a disagreement at work regarding how rooms

were to be stocked, but Montague did not consider the dispute to be serious. They also

had a discussion regarding misplaced lab slips where Drummond raised her voice. A few

weeks after that discussion, Drummond poisoned Montague's water bottle. Although

Montague asserts the poisoning took place a day or two after arguing with Drummond

about the misplaced paperwork, the evidence she cited does not support this assertion.

Montague presented no evidence that these past work-related disputes, rather than


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Drummond's personal animosity toward Montague unrelated to Drummond's

employment with Kaiser, motivated her actions. (Compare, Carr v. Wm. C. Crowell Co.

(1946) 28 Cal.2d 652, 657 [the fact employee and coworker victim had never conversed

before the dispute indicated dispute arose out of employment]; Yamaguchi v. Harnsmut

(2003) 106 Cal.App.4th 472, 476, 486 [trial court committed reversible error in ruling, as

a matter of law, that restaurant worker's act of throwing hot oil at police officer there to

break-up work-related dispute was within the scope of his employment for purposes of

respondeat superior liability against restaurant]; Rodgers v. Kemper Constr. Co. (1975)

50 Cal.App.3d 608, 615, 621 [when dispute arose, victims were complete strangers to

assailants who worked at same job site, thus dispute was within the scope of

employment].)

       Even assuming the evidence supports an inference that the poisoning arose out of

a work-related dispute that occurred weeks earlier, the dispute concerned Drummond and

Montague's mutual employment with Kaiser, not Nursefinders. Montague's attempt to

establish respondeat superior liability for Nursefinders simply because she and

Drummond worked together at Kaiser is misguided. "The nexus required for respondeat

superior liability—that the tort be engendered by or arise from the work—is to be

distinguished from 'but for' causation. That the employment brought tortfeasor and

victim together in time and place is not enough." (Lisa M., supra, 12 Cal.4th at p. 298,

fn. omitted.) The facts, construed most favorably for Montague, do not support liability

against Nursefinders because Drummond's poisoning of Montague was highly unusual

and startling.


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       Finally, the public policy factors underlying the doctrine of respondeat superior do

not support the imposition of vicarious liability to Nursefinders under these facts. These

public policy factors are: "(1) to prevent recurrence of the tortious conduct; (2) to give

greater assurance of compensation for the victim; and (3) to ensure that the victim's

losses will be equitably borne by those who benefit from the enterprise that gave rise to

the injury." (Farmers, supra, 11 Cal.4th at p. 1013.) Here, the potential for civil and

criminal liability provides a deterrent to the type of aberrant conduct that Drummond

committed. (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 284-287, 297 [court

deemed employee's act of forcing another car off the road to be aberrant behavior that the

majority of motorists did not engage in, so there was no deterrent effect in imposing

liability on the employer].) Additionally, while invoking vicarious liability under these

facts would provide greater assurance of compensation to victims, Nursefinders derived

no benefit from Drummond's conduct and it would be inequitable to shift the loss to

Nursefinders. (Alma W., supra, 123 Cal.App.3d at pp. 143-144.)

                              III. Negligence Cause of Action

       The trial court concluded that Montague did not establish a triable issue of fact

regarding her claim that Nursefinders negligently hired, retained or supervised

Drummond. Montague does not challenge the ruling on the issues of negligent hiring,

retention or supervision. Accordingly, we focus on Montague's remaining claim for

negligent training.




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       Montague alleged that Nursefinders had a duty to train Drummond regarding the

proper handling of work-related disputes and that its negligence in this regard caused her

harm. As a preliminary matter, we will assume without deciding, that Nursefinders had a

duty to train its employees regarding the avoidance of workplace violence. (Phillips v.

TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140 [Liability for negligent hiring,

training, and supervision " 'is limited by basic principles of tort law, including

requirements of causation and duty.' "].)

       The trial court concluded that Montague's negligence cause of action failed based

on lack of causation. Montague asserts the trial court erred because a jury could conclude

that Drummond's intentional act was caused by the failure of Nursefinders to train her on

avoiding workplace violence and, to the extent a jury could conclude that Drummond

acted negligently, her negligent act was caused by the failure of Nursefinders to train her

on handling hazardous chemicals. We do not address the latter argument as this theory of

liability was not alleged in Montague's complaint. (Powell v. Standard Brands Paint Co.

(1985) 166 Cal.App.3d 357, 365 [pleadings define the issues on motion for summary

judgment].) Moreover, as addressed above, the evidence does not support an inference

that Drummond acted negligently. (Ante, pt. II.)

       Drummond and the Nursefinders's branch director signed a document verifying

that Drummond participated in Nursefinders's orientation which explained certain topics

including "Workplace Violence." Nursefinders also admitted it trained Drummond on

Kaiser's policies and procedures regarding "Violence in the Workplace" and

"Management of Threats and Aggressive Behavior." Montague cites to Drummond's


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deposition testimony and her response to an interrogatory to show Drummond did not

receive the specified training. Review of this evidence does not support her contention.

       When asked whether Nursefinders "train[ed] her," Drummond responded "no." A

follow-up question then clarified that Drummond had already been trained as a medical

assistant when Nursefinders hired her. Additionally, when asked to identify the persons

employed by Nursefinders who were responsible for training her, Drummond responded

that although the term "training" was vague, she did not receive training from

Nursefinders. This evidence regarding unspecified training does not conflict with

Nursefinders's sworn responses to request for admissions that it trained Drummond on

Kaiser's policies and procedures regarding "Violence in the Workplace" and

"Management of Threats and Aggressive Behavior." At most, Drummond's testimony

and interrogatory response hints at a possible issue that Nursefinders failed to provide the

specified training, however, speculative inferences do not raise a triable issue of fact.

(Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 [inferences offered to

oppose summary judgment must be reasonably deducible from the evidence and not

derived from "speculation, conjecture, imagination, or guesswork"].)

       Montague's argument appears to be that because Nursefinders trained Drummond

on avoiding workplace violence and the incident occurred, this evidence supports an

inference that Nursefinders must have breached its duty to train Drummond in avoiding

workplace violence and this breach caused her injuries. We reject this contention as the

suggested inferences are based on speculation and not reasonably deducible from the

evidence. Montague "cannot survive summary judgment simply because it is possible"


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that Nursefinders breached a duty to provide training regarding the avoidance of

workplace violence and that this breach "might have" caused her injury. (Leslie G. v.

Perry & Associates (1996) 43 Cal.App.4th 472, 483, italics deleted.)

       For example, a similar argument was rejected in Flores v. Autozone West, Inc.

(2008) 161 Cal.App.4th 373 (Flores). In Flores, a customer attacked by a store employee

claimed that triable issues of fact existed because no one actually made sure that the

employee had read and understood an employee handbook. The court disagreed, stating

"implicit in this claim is the assertion that [the employee's] decision to physically attack

[the customer] might have been caused by his failure to understand that such an act

would contravene [the store's] policies. This does not pass the straight face test. There is

simply no reasonable basis to conclude that [the employee's] act of criminally assaulting

a customer was somehow the result of [the store's] failure to make clear that such conduct

would not be considered an acceptable employee act." (Id. at p. 385, italics added.)

       Because the evidence does not allow a reasonable jury to find for Montague by a

preponderance of evidence, Nursefinders is entitled to summary judgment of this claim.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)

                                  III. Loss of Consortium

       The loss of consortium claim by Montague's husband is derivative of Montague's

claims. (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 358, fn. 1.)

Because we conclude that Montague's negligence and vicarious liability claims fail, her

husband's loss of consortium claim also fails. (Ibid.)




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                              DISPOSITION

The judgment is affirmed. Respondent is to recover its costs on appeal.



                                                                   McINTYRE, J.

WE CONCUR:


McCONNELL, P. J.


McDONALD, J.




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