Filed 7/30/18




                       CERTIFIED FOR PARTIAL PUBLICATION *


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

OSCAR PEREDIA et al.,
                                                                   F074083
        Plaintiffs and Appellants,
                                                       (Super. Ct. No. 13CECG03137)
                  v.

HR MOBILE SERVICES, INC.,                                        OPINION
        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of Fresno County. Mark Wood
Snauffer, Judge.
        Law Offices of Tony J. Tanke, Tony J. Tanke; Law Offices of Gary L. Simms and
Gary L. Simms; Law Office of Scott Righthand, Scott D. Righthand and Brittany Rogers,
for Plaintiffs and Appellants.
        Farbstein & Blackman, Michael A. Farbstein and Ramsey F. Kawar for Defendant
and Respondent.
                                         -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part IV. of the Discussion.
       This appeal addresses the circumstances under which a safety consultant retained
by a California employer owes a duty of care to the employer’s workers. California
recognizes the common law theory of negligent undertaking, which is described in
section 324A of the Restatement Second of Torts (section 324A). Our Supreme Court set
forth the five elements of a negligent undertaking cause of action in Artiglio v. Corning
Inc. (1998) 18 Cal.4th 604 (Artiglio), three of which are related to the duty of care. Our
Supreme Court has not applied these elements to a safety consultant.
       Here, the trial court granted summary judgment to the safety consultant on the
ground the consultant owed no duty of care to the employees because the consultant’s
allegedly negligent omissions were not affirmative misfeasance and, therefore, were not
acts “wrongful in their nature” for purposes of Civil Code section 2343. We interpret the
phrase “wrongful in their nature” as encompassing conduct that is tortious—that is, a
civil wrong. Consequently, if plaintiffs are able to prove all of the elements of their
negligent undertaking cause of action, they will have established the consultant’s acts
constituted a tort and, thus, were “wrongful in their nature.” In that situation, their claim
will not be precluded by Civil Code section 2343. Under this statutory interpretation,
agents are responsible for their independent torts, but are not held vicariously liable for
the torts of their principal.
       As to the elements of the negligent undertaking cause of action, we conclude there
are triable issues of material fact as to (1) the precise scope of the consultant’s
undertaking and of the duty that may have arisen from the undertaking, (2) whether the
consultant breached that duty, and (3) whether the breach caused the death of plaintiffs’
son.
       We therefore reverse the summary judgment and remand for further proceedings.
                                           FACTS
       Plaintiffs Oscar and Laura Peredia are the parents of Oscar Peredia, Jr., who was
19 years old on September 20, 2012, when he was killed while working at Double

                                              2.
Diamond’s dairy. When Oscar Jr. was sweeping the feed slab that morning, he was hit
by the front-end loader on a John Deere tractor, knocked down, and run over by the right
front wheel of the tractor.
       Double Diamond began its dairy business in 1998. At the time of the incident, the
dairy occupied 220 acres, had approximately 4,800 milking cows, a total of 9,500
animals, and about 50 employees. Approximately 3,000 acres of farmland support the
dairy, and Double Diamond’s farming operations employ another 20 workers.
       Around May 2012, Double Diamond engaged defendant HR Mobile Services, Inc.
(HR Mobile) to assist it with human resources, training, loss prevention, and workers’
compensation issues. The contractual relationship between Double Diamond and HR
Mobile was established by a handshake and was not set forth in a written document
signed by the parties. Double Diamond paid HR Mobile $24,000 per year for services
related to the dairy.
       HR Mobile acknowledges it agreed to assist, and did assist, Double Diamond in
carrying out its workplace safety obligations, but asserts it did not agree to fully assume
Double Diamond’s workplace safety obligations to the employees working at the dairy.
Plaintiffs contend the extent of HR Mobile obligations presents an issue of fact that is
disputed. In HR Mobile’s view, it agreed to and accepted a secondary role with respect
to quarterly safety meetings, quarterly site safety inspections, accident investigations, and
safety training, while Double Diamond remained responsible for compliance with safety,
site safety inspections, correcting hazards, safety training and record keeping.
       HR Mobile supplied Double Diamond with several new human resources
documents, including employee safety policy documents. HR Mobile requested Boretti,
Inc., one of its vendors, to provide a form of injury and illness prevention plan (IIPP).
HR Mobile asserts that when it obtained the IIPP from Boretti, Inc., it believed the IIPP
complied with California’s basic statutory and regulatory requirements for dairy IIPP’s
and was based on current occupational and health standards and requirements and on

                                             3.
accepted industrial safety and health principles and practices. Plaintiffs contend HR
Mobile’s belief was not reasonable because, among other things, HR Mobile neglected to
analyze the dairy’s previous IIPP or the one obtained from Boretti, Inc. to ensure the new
IIPP complied with occupational and health standards and requirements. Plaintiffs assert
the subsequent citations issued by California’s Division of Occupational Safety and
Health (CalOSHA) establish the IIPP was not compliant.
       On August 24, 2012, HR Mobile staff conducted a job site safety inspection at
Double Diamond’s dairy and also conducted an employee safety training meeting. The
worker who was operating the tractor (Driver) that struck Oscar Jr. attended the meeting.
The topics covered at the meeting included tractor safety and front-end loader safety.
Employees attending the meeting were provided with training materials that included the
instruction for equipment operators to always look where they were going.
       The September 20, 2012, incident occurred while Driver was using the tractor and
loader to move feed ingredients from one location to another at the dairy. Before the day
of the incident, Driver had observed workers sweeping gravel from the feed slab at
random times approximately two or three times a month and had observed Oscar Jr.
working in the feed slab area, cutting rope from bales of hay, sweeping or both. The
position of the loader’s bucket at the time of the incident may have created a blind spot,
which may have obstructed Driver’s view for at least 15 to 20 feet in front of the bucket.
       The parties dispute whether Driver was paying attention to where he was going
when he struck Oscar Jr. and whether Oscar Jr., contrary to Double Diamond’s policy,
was using earbuds to listen to an electronic device.
                                    PROCEEDINGS
       In 2013, plaintiffs filed a wrongful death and survival action against HR Mobile
and others. In April 2014, they filed a first amended complaint alleging negligence
claims against HR Mobile. The first amended complaint is the operative pleading in this
appeal and, as a result, frames the issues addressed in HR Mobile’s motion for summary

                                             4.
judgment. Plaintiffs alleged HR Mobile was negligent in, among other things, (1) failing
to design and create a safety program addressing the safety of ground workers in the
vicinity of heavy equipment operations, (2) failing to institute a safety program that
included use of high visibility clothing for workers at the dairy, (3) failing to educate
workers about the dangers of heavy equipment, and (4) inadequate management of its
responsibilities as set forth in the IIPP.
       In April 2016, HR Mobile moved for summary judgment, asserting plaintiffs’
causes of action were devoid of merit because plaintiffs could not establish the duty or
causation elements of the underlying negligence claims. The motion also challenged
plaintiffs’ prayer for punitive damages.
       On June 15, 2016, the trial court issued a tentative ruling stating the court intended
to grant the motion because “Civil Code section 2343 precludes liability for HR [Mobile]
under the circumstances of this case.” Following a hearing and arguments from counsel,
the court took the matter under submission. Later, the court filed a minute order adopting
its tentative ruling.
       In July 2016, the court signed and filed a judgment on order granting summary
judgment in favor of HR Mobile. Plaintiffs filed a timely notice of appeal.
                                        DISCUSSION
I.     BASIC LEGAL PRINCIPLES
       A.      Standard of Review
       Appellate courts independently review a grant of summary judgment to determine
whether there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c).) The
independent standard of review also applies to the issue of statutory construction
presented in this appeal, which is a question of law. (Brown v. Superior Court (2018) 19
Cal.App.5th 1208, 1218.)




                                              5.
       B.     Negligence
              1.     Elements of a Claim
       The elements of any negligence cause of action are duty, breach of duty,
proximate cause, and damages. (Artiglio, supra, 18 Cal.4th at p. 614.) Here, HR
Mobile’s motion for summary judgment asserted plaintiffs could not establish the
elements of duty or causation.
              2.     Negligent Undertaking
       California recognizes a legal duty of care in certain circumstances where the
defendant undertakes to render services to someone other than the plaintiff. This
“negligent undertaking” theory of liability is set forth in section 324A. In Artiglio, our
Supreme Court stated that “California courts, including this court, have long recognized
section 324A’s negligent undertaking theory, the general viability of which is not at
issue.” (Artiglio, supra, 18 Cal.4th at pp. 607-608; see Paz v. State of California (2000)
22 Cal.4th 550, 559; CACI No. 450C [negligent undertaking].) In Artiglio, the plaintiffs
alleged injury from silicone breast implants and sued the defendant corporations for
negligently discharging an undertaking to provide silicone toxicology research to their
subsidiary, the manufacturer of the implants. (Artiglio, supra, at p. 608.) The Supreme
Court upheld the grant of summary judgment for the defendant corporations on the
ground that “any risk of physical harm to plaintiffs from negligent performance of that
undertaking was unforeseeable.” (Ibid.) Artiglio is significant to the instant appeal
because of its discussion of the negligent undertaking theory of liability and section
324A. As quoted by the Supreme Court, section 324A provides in its entirety:

       “‘One who undertakes, gratuitously or for consideration, to render services
       to another which he should recognize as necessary for the protection of a
       third person or his things, is subject to liability to the third person for
       physical harm resulting from his failure to exercise reasonable care to
       [perform] his undertaking, if [¶] (a) his failure to exercise reasonable care
       increases the risk of such harm, or [¶] (b) he has undertaken to perform a
       duty owed by the other to the third person, or [¶] (c) the harm is suffered


                                             6.
       because of reliance of the other or the third person upon the undertaking.’”
       (Artiglio, supra, 18 Cal.4th at pp. 612-613, fn. omitted.)
       After discussing some case law related to section 324A and the Good Samaritan
rule, the Supreme Court set forth the elements of a negligent undertaking cause of action
that are applicable in this case. We have modified that statement by replacing the names
of the parties in that case with the names of the entities in this appeal:

       “As the traditional theory is articulated in the Restatement, a negligent
       undertaking claim of liability to third parties requires evidence that: (1) the
       actor (in this case, [HR Mobile]) undertook, gratuitously or for
       consideration, to render services to another ([Double Diamond]); (2) the
       services rendered were of a kind the actor should have recognized as
       necessary for the protection of third persons ([the employees of Double
       Diamond]); (3) the actor failed to exercise reasonable care in the
       performance of its undertaking; (4) the failure to exercise reasonable care
       resulted in physical harm to the third persons; and (5) either (a) the actor’s
       carelessness increased the risk of such harm, or (b) the undertaking was to
       perform a duty owed by the other to the third persons, or (c) the harm was
       suffered because of the reliance of the other or the third persons upon the
       undertaking.” (Artiglio, supra, 18 Cal.4th at pp. 613-614.)
       Based on this description of the elements of a negligent undertaking claim,
plaintiffs contend HR Mobile owed a duty of care to the deceased on two grounds. First,
HR Mobile undertook to perform safety duties that Double Diamond owed to its
employees. Second, Double Diamond relied on HR Mobiles’ safety program and IIPP
and, thus, did not consider or implement further safety measures.
              3.      Case Law Involving Inspectors and Safety Consultants
       Generally, cases in which negligence claims are pursued against entities
performing safety inspections or other safety-related services for the injured worker’s
employer involve at least five types of defendants. The type of defendant of interest here
is the safety consultant because HR Mobile acted in that capacity. The other types of




                                              7.
defendants include (1) insurance companies, 1 (2) parent corporations, 2 (3) engineering
firms, 3 and (4) governmental entities. 4
       The California Supreme Court has not specifically addressed the application of the
negligent undertaking theory of liability to a safety consultant. However, other state
supreme courts have. For example, the Arkansas Supreme Court considered “whether an
independent safety inspection company owes a duty of care to a third-party employee.”
(Wilson v. Rebsamen Insurance, Inc. (1997) 330 Ark. 687, 696 [957 S.W.2d 678]
(Wilson).) The court noted the question was “an issue of first impression in Arkansas”
and provided the following description of how other courts had dealt with the issue:



1       In Hutcherson v. Progressive Corporation (11th Cir. 1993) 984 F.2d 1152, a
summary judgment for an insurance company was reversed. In Derosia v. Liberty Mut.
Ins. Co. (1990) 155 Vt. 178 [583 A.2d 881], a jury verdict against an insurance company
was affirmed. In Pratt v. Liberty Mutual Ins. Co. (2d Cir. 1992) 952 F.2d 667, the court
reversed a directed verdict for the employer’s workers’ compensation carrier, which
allegedly undertook to conduct an active loss-prevention program at the facilities of the
plaintiff’s employer.
2      In Miller v. Bristol-Myers Co. (1992) 168 Wis.2d 863 [485 N.W.2d 31],
Wisconsin’s Supreme Court reversed a summary judgment granted to a parent
corporation, concluding the parent corporation had acted in such a manner as to assume a
common law duty of care to its subsidiary’s employees. In Johnson v. Abbe Engineering
Co. (5th Cir. 1984) 749 F.2d 1131, the court upheld a jury verdict against a parent
company that inspected a plant where the plaintiff was injured. In contrast, Louisiana’s
Supreme Court reversed a jury’s award in favor of injured workers, concluding the
evidence presented did not establish for purposes of section 324A that the parent
company affirmatively undertook to provide its subsidiary’s employees with a reasonably
safe place to work. (Bujol v. Entergy Services, Inc. (La. 2004) 922 So.2d 1113, 1133,
1138 (Bujol).)
3      In McDonnell v. Wasenmiller (8th Cir. 1934) 74 F.2d 320, the court upheld a
judgment against a civil engineer whose firm actively supervised installation of heating
units. (Id. at p. 326.)
4     In Irving v. United States (1st Cir. 1998) 162 F.3d 154, an injured factory worker
unsuccessfully claimed inspectors employed by Occupational Safety and Health
Administration negligently performed their duties.


                                            8.
       “Other jurisdictions have consistently held that pursuant to section (b) of
       Restatement 324A an independent consulting firm that agrees to perform
       safety inspections of an employer’s work place owes a duty of care to a
       third-party employee to perform those inspections with reasonable care.
       Canipe v. National Loss Control Serv. Inc., 736 F.2d 1055 (5th Cir.1984);
       Santillo v. Chambersburg Eng’g Co., 603 F.Supp. 211 (E.D.Pa. 1985), aff’d
       802 F.2d 44[8] (3rd Cir. 1986); see also Price v. Management Safety Inc.,
       485 So.2d 1093 (Ala.1986) (imposing a duty without mentioning
       Restatement § 324A); Gallichio v. Corporate Group Serv. Inc., 227 So.2d
       519 (Fla.App.1969) (finding a duty of care under contract law). These
       jurisdictions reason that the safety consultant owes a duty of care under
       Restatement § 324A(b) because it is reasonably foreseeable that if the
       inspections are done improperly, a third-party employee will be injured.
       See Santillo, supra; Gallichio, supra.

       “Moreover, the facts of the cases in which other courts have imposed a duty
       of care are virtually identical to the facts at hand. For example, in Santillo,
       an employer hired NATLCO, an independent consulting firm, to perform
       safety inspections of its plant and make recommendations concerning
       safety improvements. Santillo, supra. Although it appears that NATLCO
       did not have the authority to implement the safety improvements it
       recommended, the Pennsylvania court held that pursuant to section (b) of
       Restatement 324A, NATLCO owed a duty of care to an employee who was
       injured as a result of NATLCO’s allegedly negligent inspection of a piece
       of machinery. Santillo, supra.” (Wilson, supra, 957 S.W.2d at pp. 681-
       682.)
       Ultimately, the Arkansas Supreme Court concluded “that pursuant to section (b) of
the Restatement (Second) of Torts § 324A, [the safety inspection company and its vice
president in charge of the inspection] owed [the injured worker] a duty of care in
connection with their undertaking to inspect the premises and warn [the employer]
Arkansas Oak Flooring about any detected safety hazards.” (Wilson, supra, 957 S.W.2d
at p. 683.) Accordingly, the court reversed the summary judgment granted to the safety
inspection company. (Ibid.)
       Santillo v. Chambersburg Engineering Co. (E.D.Pa. 1985) 603 F.Supp. 211
(Santillo), also involved a safety consultant. Santillo is significant to us because it was
discussed by the Arkansas Supreme Court, has been cited the parties in their appellate



                                              9.
briefs, and was cited twice by our Supreme Court in Artiglio. The second and most
detailed citation read: “(Cf. Santillo v. Chambersburg Engineering Co., supra, 603
F.Supp. at p. 214 [defendant provided safety inspections of an employer’s physical plant;
court noted ‘[s]afety concerns by their nature involve consideration of the well-being and
protection of third parties: the employees’].)” (Artiglio, supra, 18 Cal.4th at p. 615.)
This citation by the Supreme Court refers to (and provides guidance on) the second of the
five elements articulated in Artiglio for a negligent undertaking cause of action—that is,
whether “(2) the services rendered were of a kind the actor should have recognized as
necessary for the protection of third persons.” (Id. at p. 614.)
              4.     Summary of the Elements of the Negligent Undertaking Claim
       Based on Artiglio, section 324A and the case law from other jurisdictions, we
reach the following legal conclusions. A safety consultant is liable to an employee of the
firm that hired the safety consultant when the employee establishes the elements of a
negligent undertaking claim set forth by our Supreme Court in Artiglio. Therefore, to
establish a negligent undertaking cause of action against HR Mobile, plaintiffs must
establish that (1) HR Mobile undertook to render services to Double Diamond; (2) the
services rendered were of a kind HR Mobile should have recognized as necessary for the
protection of the employees of Double Diamond; (3) HR Mobile failed to exercise
reasonable care in the performance of its undertaking; (4) the failure to exercise
reasonable care resulted in physical harm to Oscar Jr.; and (5) either (a) HR Mobile’s
carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty
owed by Double Diamond to the employees, or (c) the harm was suffered because of the
reliance of Double Diamond or the employees upon the undertaking. (Artiglio, supra, 18
Cal.4th at pp. 613-614.) Under this formulation, a duty of care exists when the first,
second and fifth elements are established. The third element addresses the breach of that
duty of care and the fourth element covers both causation and damages.



                                             10.
II.    CIVIL CODE SECTION 2343
       Before we consider the application of the first, second and fifth elements to the
facts asserted and evidence presented, we consider whether Civil Code section 2343
compels the conclusion that HR Mobile owed no duty of care to Double Diamond’s
employees. This question requires us to construe Civil Code section 2343 and apply that
statutory construction to the facts presented. When the trial court undertook these steps,
it concluded “Civil Code section 2343 precludes liability of HR [Mobile] under the
circumstances of this case” and granted the motion for summary judgment on that
ground.
       A.      Meaning of the Statute
               1.     Statutory Text
       Civil Code section 2343 provides: “One who assumes to act as an agent is
responsible to third persons as a principal for his acts in the course of his agency, in any
of the following cases, and in no others: [¶] … [¶] When his acts are wrongful in their
nature.” (Italics added.) The italicized text was significant to the trial court’s analysis.
The court concluded the phrase “and in no others” has a preclusive effect—that is, the
statute operates to limit the liability of agents to the situations specifically listed in the
statute. In addition, the court interpreted the term “wrongful” to mean affirmative
misfeasance. Applying this interpretation, the court concluded HR Mobile’s passive
failure to identify and correct dangerous working conditions at the dairy was not
“wrongful” and, therefore, HR Mobile had no responsibility (i.e., owed no duty of care)
to the third persons who worked at the dairy.
               2.     Acts Wrongful in Their Nature
       The foundation for our analysis of the meaning of Civil Code section 2343 is
provided by three basic rules addressing the liability of principals and agents to third
parties. First, a principal who personally engages in no misconduct may be vicariously
liable for the tortious act committed by an agent within the course and scope of the


                                               11.
agency. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 513; see 3 Witkin,
Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 175 [principal liability
for agent’s tort where agent alone is at fault].) Second, an agent is liable for his or her
own torts, whether the principal is liable or not, and in spite of the fact that the agent
acted in accordance with the principal’s directions. (Holt v. Booth (1991) 1 Cal.App.4th
1074, 1080, fn. 5; 3 Witkin, Summary of Cal. Law, supra, § 210 [liability of agent for
torts].) Stated another way, the fact that the principal becomes liable under the rules of
vicarious liability or otherwise does not exonerate an agent from liability for a tortious act
committed by the agent while acting under the authority of the principal. (Bayuk v.
Edson (1965) 236 Cal.App.2d 309, 320.) Third, in contrast to the vicarious liability of
principals, agents are not vicariously liable for the torts of their principals. (Kurtin v.
Elieff (2013) 215 Cal.App.4th 455, 480 (Kurtin); 3 Witkin, Summary of Cal. Law, supra,
§ 212 [innocent agent ordinarily is not liable for the principal’s tort].)
       The meaning of Civil Code section 2343’s clause referring to acts “wrongful in
their nature” was addressed in Kurtin. In that court’s view, the clause reflects the rule
that agents are not liable for the torts of their principals and, furthermore, codifies the rule
that agents are responsible for their own independent torts committed during the course
of their agency. (Kurtin, supra, 215 Cal.App.4th at p. 480.) For instance, when an
attorney commits fraud in dealing with a third party, the fact the attorney acted as the
agent of a client does not relieve the attorney of liability. (Shafer v. Berger, Kahn,
Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 69 (Shafer).)
Under the views expressed in Kurtin and Shafer, acts are “wrongful in their nature” if
they constitute an independent tort, which is the equivalent of interpreting “wrongful” as
encompassing tortious acts.




                                              12.
              3.     Meaning of “Wrong” and “Wrongful” in Other Contexts
       In other contexts, court have used the terms “wrong” and “wrongful” to describe
torts. For example, it is well established that the word “tort” means a civil wrong, other
than a breach of contract, for which the law will provide a remedy in the form of an
action for damages. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280,
286; Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 642; see Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 189 [court referred to “wrongful conduct
forming the foundation for Plaintiffs’ negligence claim”].) This definition of “tort”
logically implies that when all the elements of a tort cause of action have been
established, the defendant’s conduct is “wrongful” for purposes of civil law.
       In addition, former Code of Civil Procedure section 377—a wrongful death
statute—used the term “wrongful” in referring “to the ‘death of a person caused by the
wrongful act or neglect of another.’” (Barrett v. Superior Court (1990) 222 Cal.App.3d
1176, 1191.) As to the meaning of the phrase “wrongful act or neglect,” the court
“conclude[d] that ‘neglect’ is a specific word, an example of one kind of ‘wrongful act.’
Thus, the term ‘wrongful act’ must define a class of behavior, of which ‘neglect’ is a
member.” (Ibid.) The court noted “‘wrongful act’ has been defined in other cases as
meaning simply any tortious conduct, i.e., any act for which the defendant may be liable
in tort.” (Ibid.) As a result, the court concluded “that ‘wrongful act’ as used in [former]
section 377 means any kind of tortious act, including the tortious act of placing defective
products into the stream of commerce.” (Ibid.)
       In the context of a claim for intentional interference with prospective economic
advantage, our Supreme Court has stated the plaintiff must “prove that the interference
was wrongful, independent of its interfering character.” (Edwards v. Arthur Andersen
LLP (2008) 44 Cal.4th 937, 944.) “‘[A]n act is independently wrongful if it is unlawful,
that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or
other determinable legal standard.’” (Ibid.) The commission of a tort violates a legal


                                             13.
standard established by common law and, thus, is an independent wrong under this
definition.
       Also, the term “wrong” appears in the codified maxim of jurisprudence that “[f]or
every wrong there is a remedy.” (Civ. Code, § 3523.) Courts have interpreted this use of
the term “wrong” to mean legal wrongs or those wrongs for which the law authorizes or
sanctions redress, such as a tort. (The MEGA Life & Health Ins. Co. v. Superior Court
(2009) 172 Cal.App.4th 1522, 1526-1527.) Thus, the maxim does not “provide remedies
for every ‘wrong’ in the moral sense.” (Id. at p. 1527.)
       The foregoing approaches to the meaning of the term “wrong” is compatible with
the view that tortious conduct is wrongful. Based on Kurtin, Shafer, and the way
“wrong” and “wrongful” are used in other contexts, we conclude “acts are wrongful in
their nature” for purposes of Civil Code section 2343 when they constitute an
independent tort, such as the tort of negligent undertaking. Under this interpretation of
Civil Code section 2343, agents are protected from vicarious liability for the torts of their
principals, but are held responsible for their own actions that constitute a tort, such as the
negligent undertaking tort recognized in California.
              4.     Defining “Wrongful” as Affirmative Misfeasance
       The trial court relied on Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52
(Ruiz), when it interpreted Civil Code section 2343’s phrase “wrongful in their nature” to
mean affirmative misfeasance. In Ruiz, the Fourth District stated:

       “[Civil Code section 2343] provides that an agent is liable to third persons
       for wrongful acts taken in the course of the agency. (Civ. Code, § 2343,
       subd. (3).) However, the statute only makes an agent liable for affirmative
       misfeasance; it does not render an agent liable to third parties for the failure
       to perform duties owed to his principal. (Mears v. Crocker Nat. Bank
       (1950) 97 Cal.App.2d 482, 491 [218 P.2d 91].) Thus, Civil Code section
       2343 does not make [the contract administrator] liable to the [plaintiff] for
       any failure to perform its obligations under its contract with [the
       landowner] to monitor safety at the worksite.” (Ruiz, supra, at p. 65.)



                                             14.
       We agree that Civil Code section 2343 does not make an agent liable to third
parties for failures to perform duties owed to his principal so long as that failure to
perform did not breach a duty of care the agent owed to the third parties. An example of
such a duty of care is the one that exists when the first, second and fifth elements of a
negligent undertaking cause of action have been established. In Ruiz, the court did not
address section 324A and the negligent undertaking cause of action recognized in
Artiglio. Consequently, it is not authority for the proposition that Civil Code section
2343 operates to restrict liability under that cause of action.
       Our interpretation of Civil Code section 2343 is the same as that adopted in Mears
v. Crocker Nat. Bank (1950) 97 Cal.App.2d 482, the only case cited by the Fourth
District to support its “affirmative misfeasance” interpretation. In Mears, the court
stated: “‘Section 2343 recognizes the elementary rule that every one is liable for his
torts, and an agent or servant no exception merely because such.’ We think the provision
cited means that and no more.” (Id. at p. 491.) We have reached the same conclusion—
agents are liable for their torts.
       B.      Application of Statutory Interpretation to the Facts
       The application of our interpretation of Civil Code section 2343 to the facts of this
case is straightforward. If plaintiffs are able to establish the elements of their negligent
undertaking cause of action, then they will have established that HR Mobile’s conduct
was “wrongful” for purposes of the statute and, as a result, the statute allows, rather than
bars, their claim. Consequently, the order granting HR Mobile’s motion for summary
judgment cannot be upheld on the ground that plaintiffs’ negligence claims are precluded
by Civil Code section 2343. If the order is to be upheld, HR Mobile’s moving papers
must demonstrate the negligent undertaking cause of action itself has no merit. (Code
Civ. Proc., § 437c, subd. (p)(2).)




                                              15.
III.   DUTY OF CARE FOR THE NEGLIGENT UNDERTAKING CLAIM
       A.     Burden to Negate an Element
       Whether HR Mobile owed a duty of care to the employees at Double Diamond’s
dairy depends on whether plaintiffs can establish the first, second and fifth elements of a
cause of action for negligent undertaking. Under subdivision (p)(2) of Code of Civil
Procedure section 437c, a moving party defendant meets its burden of showing a cause of
action has no merit by showing “that one or more of the elements of the cause of action
… cannot be established.” Therefore, HR Mobile can prevail on the ground that it owed
no duty of care to Double Diamond’s employees by demonstrating plaintiffs cannot
establish that one or more of the elements related to duty.
       B.     Contentions
       HR Mobile contends its limited consulting role with Double Diamond did not
extend to an assumption of Double Diamond’s worker safety duties. HR Mobile asserts
plaintiffs have grossly overstated the scope of its undertaking when they argued HR
Mobile expressly undertook to safeguard and to protect Double Diamond’s employees
from workplace hazards. HR Mobile contends it never agreed to take control of, or
responsibility for, on-the-ground conditions at Double Diamond. HR Mobile contends
plaintiffs “disregard uncontroverted evidence that HR Mobile’s consulting relationship
with Double Diamond was nascent” and it had presented a preliminary IIPP that was not
fully developed.
       Plaintiffs contend HR Mobile has failed to articulate how the scope of its
undertaking was limited and, moreover, has failed to set forth any facts showing its
undertaking to protect Double Diamond’s employees was “clearly limited.”
       C.     The Elements Establishing a Duty of Care
              1.     Review of the Elements
       As stated by our Supreme Court, the first element of a negligent undertaking cause
of action requires plaintiffs to prove “(1) the actor (in this case, [HR Mobile]) undertook,


                                            16.
gratuitously or for consideration, to render services to another ([Double Diamond]).”
(Artiglio, supra, 18 Cal.4th at p. 614.) The second element requires plaintiffs to prove
“(2) the services rendered were of a kind [HR Mobile] should have recognized as
necessary for the protection of third persons ([the employees of Double Diamond]).”
(Ibid.) The fifth element requires proof that “(5) either (a) the actor’s carelessness
increased the risk of such harm, or (b) the undertaking was to perform a duty owed by
[Double Diamond] to the [employees], or (c) the harm was suffered because of the
reliance of [Double Diamond] or the [employees] upon the undertaking.” (Ibid.)
              2.     The First Element: Undertaking to Render Services
       It is undisputed that HR Mobile undertook, for consideration ($24,000 annually),
to render services to Double Diamond related to its dairy operations, despite the absence
of a written document signed by them. HR Mobile’s separate statement of undisputed
facts asserted it reached an agreement with, and actually rendered services to, Double
Diamond, including conducting a site safety inspection and an employee safety training
meeting. Thus, HR Mobile has failed to demonstrate plaintiffs cannot establish the first
element of a negligent undertaking claim—namely, an undertaking to render services.
              3.     The Second Element
       HR Mobile’s separate statement of undisputed material fact and its memorandum
of points and authorities in support of its motion for summary judgment did not
specifically assert that plaintiffs could not establish the second element of a negligent
undertaking cause of action. Similarly, HR Mobile’s appellate brief does not argue the
element is not present. We address the element here because it provides part of the
foundation for discussing the parties’ disputes related to the fifth element.
       Undisputed material fact (UMF) No. 6 in HR Mobile’s separate statement of
undisputed facts asserts “Double Diamond engaged HR Mobile to assist it with its human
resources, training, loss prevention, and workers’ compensation in approximately May of



                                             17.
2012.” UMF No. 8 asserts “HR Mobile agreed to assist and did assist Double Diamond
in carrying out its workplace safety obligations, but it did not agree to fully assume
Double Diamond’s workplace safety obligations to Double Diamond employees.” UMF
No. 9 asserts “HR Mobile agreed to and did accept a secondary role with respect to
quarterly safety meetings, quarterly site inspections, accident investigations, and safety
training.” On August 24, 2012, HR Mobile staff conducted a job site safety inspection
and an employee safety training session at Double Diamond. (UMF Nos. 20, 22.)
       Plaintiffs disputed some aspects of HR Mobile’s description of its agreement with
Double Diamond and the acts it performed under that agreement. As to UMF No. 6,
plaintiffs assert “HR Mobile was asked to do a safety program and evaluation for Double
Diamond Dairy and that included safety inspections of equipment and the site, safety
meetings, inspection of the work areas, job specific safety training, and recommendations
for safe premises and a safe operation at the dairy.” As to UMF No. 8, plaintiffs do not
dispute that “HR Mobile agreed to assist and did assist Double Diamond Dairy in
carrying out workplace safety on the premises” but assert “the extent of its obligations is
an issue of fact and is in dispute[].” As to HR Mobile’s assertion its role was secondary,
plaintiffs assert there was no discussion of primary versus secondary roles and the extent
of HR Mobile’s role is an issue of fact.
       We conclude UMF Nos. 8 and 9 demonstrate that HR Mobile undertook to assist
Double Diamond in carrying out its workplace safety obligations and accepted a role (the
extent of which is disputed) in conducting safety inspections and safety training. “Thus,
it appears that [HR Mobile] undertook to provide services which were recognized as
involving safety concerns.” (Santillo, supra, 603 F.Supp. at p. 214.) Our Supreme Court
has quoted the statement in Santillo that “‘[s]afety concerns by their nature involve
consideration of the well-being and protection of third parties: the employees.’”
(Artiglio, supra, 18 Cal.4th at p. 615.) The next sentence in Santillo stated: “It would be
disingenuous to conclude, as [defendant] suggests, that the performance of a safety

                                            18.
evaluation would not foreseeably give rise to concerns regarding the safety and protection
of third parties.” (Santillo, supra, at p. 214.) Based on Artiglio, Santillo and the
undisputed facts, we conclude the safety-related services undertaken by HR Mobile
foreseeably related to the safety and protection of Double Diamond’s employees.
Therefore, HR Mobile has failed to demonstrate plaintiffs cannot establish the second
element of a negligent undertaking claim.
              4.     The Fifth Element: Undertaking to Perform a Duty
       There are three options for proving the fifth element of the negligent undertaking
cause of action. As the three options are joined by the disjunctive “or,” plaintiffs need
only establish one of the three to satisfy the fifth element. In comparison, HR Mobile, as
a moving party defendant, must establish that plaintiffs cannot prove any of the three
options if it is to prevail on its motion for summary judgment. Here, we consider the
second option: whether HR Mobile’s “undertaking was to perform a duty owed by
[Double Diamond] to the third persons.” (Artiglio, supra, 18 Cal.4th at p. 614; §
324A(b).)
       The first legal issue we consider is raised by HR Mobile’s assertion that it did not
fully assume Double Diamond’s safety obligation to the employees working at the dairy.
(UMF No. 8.) In effect, HR Mobile has interpreted our Supreme Court’s reference to an
“undertaking … to perform a duty owed by [Double Diamond] to the third persons”
(Artiglio, supra, 18 Cal.4th at p. 614) to mean a safety consultant must fully assume a
duty owed by the employer to its employees before the safety consultant owes a duty of
care to the employees. 5 As explained below, we conclude California does not require a
full assumption of the employer’s duties to provide a safe workplace.

5       As observed by the trial court, California employers have a duty to provide a safe
place of employment. Labor Code section 6403 provides in full: “No employer shall fail
or neglect to do any of the following: [¶] (a) To provide and use safety devices and
safeguards reasonably adequate to render the employment and place of employment safe.
[¶] (b) To adopt and use methods and processes reasonably adequate to render the

                                             19.
       Our analysis of this issue begins by noting the language used by our Supreme
Court in Artiglio does not explicitly address, one way or the other, whether the defendant
must fully assume the employer’s duties. In addition, we have located no published
opinion of a California appellate court interpreting Artiglio or section 324A(b) to require
a full assumption of the employer’s duties.
       Similar to HR Mobile’s fully-assumed-duty argument, the consulting firm in
Wilson, argued it did not owe a duty to third-party employees injured on the job because
it had no authority to implement the safety changes it suggested. (Wilson, supra, 957
S.W.2d at p. 679.) The Arkansas Supreme Court stated it could not find “any case in
which the ability of the safety consultant to implement improvements was a relevant
factor in determining whether the consultant owed a duty of care to the injured
employee.” (Id. at p. 682.) In contrast, the court noted Santillo and Canipe v. National
Loss Control Serv. Inc. (5th Cir. 1984) 736 F.2d 1055 (Canipe) were cases in which the
consultant did not have the authority to implement its safety recommendations, but a duty
of care was imposed pursuant to section 324A. (Wilson, supra, at pp. 681-682.) Thus,
Wilson supports the conclusion that a safety consultant need not fully assume the
employer’s duty to provide a safe workplace.


employment and place of employment safe. [¶] (c) To do every other thing reasonably
necessary to protect the life, safety, and health of employees.” In addition, Labor Code
section 6401.7 provides that “[e]very employer shall establish, implement and maintain
an effective injury prevention program,” which shall be in writing and shall include the
elements listed in the statute. Among other things, the program must include a “safety
training program designed to instruct employees in general safe and healthy work
practices and to provide specific instruction with respect to hazards specific to each
employee’s job assignment.” (Lab. Code, § 6401.7, subd. (a)(4).) “The employer shall
train all employees when the training program is first established .…” (Lab. Code, §
6401.7, subd. (c).) The subject of an “Injury and Illness Prevention Program” also is
addressed by California Code of Regulations, title 8, section 3203. The foregoing
provisions demonstrate that an employer’s general duty to render the place of
employment safe encompasses the specific duty of provide employees with safety
training.


                                              20.
       HR Mobile’s contention that it did not fully assume the employer’s workplace
safety obligations is the practical equivalent of an argument that has created a split in
authority about how section 324A(b) should be interpreted. One line of cases requires
the defendant’s course of action to supplant, not merely supplement, the employer’s duty.
(E.g., Ricci v. Quality Bakers of America Co-op. Inc. (D.Del. 1983) 556 F.Supp. 716, 721
[under § 324A(b), a plaintiff must establish that the one who undertook a duty to inspect
supplanted and not merely supplemented another’s duty to inspect]; Heinrich v.
Goodyear Tire & Rubber Co. (D.Md. 1982) 532 F.Supp. 1348, 1355 [under § 324A(b),
liability “arises in the workplace setting only if the actor’s undertaking was intended to be
in lieu of, rather than a supplement to, the employer’s own duty of care to the
employees”] (Heinrich); Blessing v. United States (E.D.Pa. 1978) 447 F.Supp. 1160,
1194 [United States would be liable only if, by performing safety inspections, the
Occupational Health and Safety Administration “actually undertook not merely to
supplement the employers’ own safety inspections, but rather to supplant those
inspections”] (Blessing); see generally, Crawley, Environmental Auditing and the “Good
Samaritan” Doctrine: Implications for Parent Corporations (1993) 28 Ga. L.Rev. 223,
243-247.)
       In another line of cases, “courts have applied a less stringent standard than the ‘in
lieu of’ of ‘supplant rather than supplement’ requirement.” (Wellington & Camisa, The
Trade Association and Product Safety Standards: Of Good Samaritans and Liability
(1988) 35 Wayne L.Rev. 37, 53.) For instance, in Canipe, the Fifth Circuit explicitly
rejected a restrictive approach to section 324A(b) and concluded that provision “comes
into play as long as the party who owes the plaintiff a duty of care has delegated to the
defendant any particular part of that duty.” (Canipe, supra, 736 F.2d at p. 1062.) Stated
another way, “liability under section 324A(b) may result if an employer has delegated
any part of its duty to discover and remedy unsafe working conditions.” (Canipe, supra,
736 F.2d at p. 1063 [applying Tennessee law]; see Santillo, supra, 603 F.Supp. at p. 215

                                             21.
[defendant “does not have to assume the entire responsibility of another party” for a duty
to arise under § 324A(b)].)
       In the context of an independent safety consultant rendering services for
compensation, we conclude the appropriate legal standard is set forth in Canipe, Santillo
and Wilson. Many of the cases adopting the more stringent legal standard involve other
types of defendants, such as parent corporations and governmental entities. (See Bujol,
supra, 922 So.2d at p. 1119 [defendant was employer’s parent corporation]; Heinrich,
supra, 532 F.Supp. at p. 1350 [same]; Blessing, supra, 447 F.Supp. 1194 [defendant was
the United States].) Also, our Supreme Court has cited Santillo with approval. HR
Mobile’s appellate brief did not acknowledge the existence of a split of authority
described above. As a result, HR Mobile has not presented any reasons explaining why
the “supplant rather than supplement” requirement is superior to the interpretation of
section 324A(b) adopted in Canipe, Santillo and Wilson.
       Based on the foregoing, we conclude plaintiffs are not required to show HR
Mobile fully assumed Double Diamond’s safety obligations to its employees. HR
Mobile’s moving papers did not adopt a fallback position and present the alternate
argument that it had not undertaken a sufficient part of Double Diamond’s safety
responsibilities to its employees. Consequently, we need not discuss that specific
question.
       Another legal issue raised by HR Mobile’s contention that Double Diamond’s
responsibility to render the place of employment safe for its employees was
nondelegable. California’s nondelegable duty doctrine is not related to the elements of a
negligent undertaking cause of action. Instead, the “doctrine prevents a party that owes a
duty to others from evading responsibility by claiming to have delegated that duty to an
independent contractor hired to do the necessary work.” (SeaBright Ins. Co. v. US




                                            22.
Airways, Inc. (2011) 52 Cal.4th 590, 600-601.) 6 Therefore, we conclude the
nondelegable nature of the duty does not preclude a safety consultant from undertaking to
perform duties related to employee safety and, thus, satisfying option (b) of the fifth
element identified in section 324A.
          In summary, we conclude that HR Mobile, as the moving party defendant, has not
shown that the first, second or fifth elements of plaintiffs’ negligent undertaking “cause
of action … cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).)
          D.    Breach of the Duties Undertaken
          HR Mobile suggests that it cannot be held liable because it performed, rather than
breached, its undertaking to Double Diamond. This suggestion is related to HR Mobile’s
argument about the “Clearly Delineated Confines of HR Mobile’s Undertakings to
Double Diamond.”
          HR Mobile arguments are connected to the issue of “whether [a defendant’s]
alleged actions, if proven, would constitute an ‘undertaking’ sufficient ... to give rise to
an actionable duty of care is a legal question for the court.” (Artiglio, supra, 18 Cal.4th
at p. 615.) However, “there may be fact questions ‘about precisely what it was that the
defendant undertook to do.’ That is, while ‘[t]he “precise nature and extent” of [an
alleged negligent undertaking] duty “is a question of law ... ‘it depends on the nature and
extent of the act undertaken, a question of fact.’”’ [Citation.] Thus, if the record can
support competing inferences [citation], or if the facts are not yet sufficiently developed
[citation], ‘“an ultimate finding on the existence of a duty cannot be made prior to a
hearing on the merits”’ [citation], and summary judgment is precluded. [Citations.]”
(Ibid.)



6       Here, Double Diamond has not attempted to evade its responsibility for Oscar Jr.’s
death—a responsibility defined by California’s workers’ compensation law—by claiming
it delegated its duty to provide a safe workplace to HR Mobile.


                                              23.
       Applying the principles set forth in Artiglio, we conclude HR Mobile’s moving
papers have not established the precise nature and extent of its undertaking and, as a
result, it has failed to carry its burden of demonstrating there is no factual question about
whether it complied with its undertaking. For example, HR Mobile asserts that (1) the
topics covered at the August 24, 2012, safety training meeting included tractor safety,
including front-end loader safety, and (2) the training materials disseminated to
employees during the meeting included the instruction for equipment operators to always
look where they were going. (UMF Nos. 24, 25.) Based on the information provided by
HR Mobile’s separate statement, we cannot determine the precise nature and extent of
HR Mobile’s undertaking, which necessarily leads to the conclusion that we cannot
determine on the record before us whether HR Mobile fulfilled that undertaking.
Accordingly, the HR Mobile’s scope-of-undertaking argument does not provide a basis
for upholding the grant of summary judgment.

IV.    CAUSATION *
       A.     Contentions of the Parties
       HR Mobile contends plaintiffs have posited “speculative, alternative causation
theories with no legal or evidentiary tether.” HR Mobile contends the evidentiary
deficiencies in the CalOSHA citations and the declarations of plaintiffs’ experts render
plaintiffs’ argument on causation insufficient to raise a triable issue of material fact. In
particular, HR Mobile asserts the evidence establishes as indisputable the facts as to the
immediate cause of the fatal incident—that Driver was not looking where he was going
when he ran over Oscar Jr. HR Mobile argues the theories about a blind spot created by
the loader and the lack of reflective clothing “cannot overcome the plain reality that
[Driver] was not even looking where he was going.”



*      See footnote, ante, page 1.


                                             24.
       Plaintiffs contend HR Mobile has not shown why the evidentiary objections it
raised in the trial court are relevant to the issue of causation and, in any event, its
objections are not properly presented to this court. Plaintiffs further contend that HR
Mobile failed to carry its burden as moving party to negate the causation element as a
matter of law. Plaintiffs also argue this court need not reach the issue of causation
because it was not addressed by the trial court and, as a result, it would be a proper
exercise of discretion to remand the issue for a decision by that court.
       B.     Immediate Cause Versus the Substantial Factor Test
       First, we consider HR Mobile’s argument that plaintiffs cannot establish that its
alleged negligence caused the fatal incident because Driver’s failure to look where he
was going was the immediate cause. HR Mobile has not cited any authority for the
principle that identifying the person whose negligence was the immediate cause of an
accident precludes any other party from being held partially responsible for the accident.
We conclude the applicable standard for causation in cases where concurrent independent
causes contribute to an injury is the “substantial factor” test. (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352, fn. 12.)

       “California has definitively adopted the substantial factor test of the
       Restatement Second of Torts for cause-in-fact determinations. [Citation.]
       Under that standard, a cause in fact is something that is a substantial factor
       in bringing about the injury. [Citations.] The substantial factor standard
       generally produces the same results as does the ‘but for’ rule of causation
       which states that a defendant’s conduct is a cause of the injury if the injury
       would not have occurred ‘but for’ that conduct.” (Rutherford v. Owens-
       Illinois, Inc. (1997) 16 Cal.4th 953, 968-969.)
       Accordingly, we conclude applicable law requires HR Mobile to demonstrate that
plaintiffs cannot establish HR Mobile’s alleged negligence was a substantial factor in
bringing about the death of Oscar Jr. HR Mobile’s reliance on Driver being the
immediate cause fails to carry this burden as it did not address the correct legal standard




                                              25.
and demonstrate its alleged negligence was not a substantial factor in bringing about the
fatal incident.
       HR Mobile also argues it is speculative for plaintiffs to claim that the absence of
high visibility clothing was a cause of the fatal incident. This argument does not consider
the evidence in the light most favorable to the nonmoving party. The evidence presented
does not establish that Driver would not have seen Oscar Jr. at any time before the
incident. During his deposition, Driver testified “I wouldn’t have drove that – to that side
if I would have knew he was there.” Therefore, it is reasonable to infer that if Driver had
learned sometime that morning that Oscar Jr. was working on the feed slab, Driver would
have taken a different route and the incident would have been avoided. HR Mobile
argues this is speculation “about what would have occurred in an alternative universe.”
This argument is unconvincing. The factual issue of whether negligence relating to a
lack of high visibility clothing was a cause in fact of the fatal incident necessarily
requires the trier of fact to consider if the incident would have been prevented if such
clothing had been worn. Such a determination is essentially the same as determining
whether an automobile accident would have occurred if the defendant had been observing
the speed limit instead of speeding. Thus, HR Mobile’s alternate universe argument is
not an accepted test for determining whether a theory of causation is speculative.
       Consequently, there are triable issues of material fact relating to causation.
Therefore, we need not address the other arguments raised by the parties in connection
with the issue of causation. The causation element does not provide an independent
ground for affirming the order granting summary judgment.




                                             26.
                                       DISPOSITION
       The judgment is reversed. The trial court is directed to vacate its order granting
the motion for summary judgment and to enter a new order denying the motion.
Plaintiffs shall recover their costs on appeal.

                                                                _____________________
                                                                          FRANSON, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
DETJEN, J.




                                              27.
