Tentative Ruling: Beatriz Espinoza et al vs Vernon Construction Inc et al

Case Number

24CV07021

Case Type

Unlimited Other PI/PD/WD (23)

Hearing Date / Time

Tue, 10/20/2026 - 08:30

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

PROPOSED TENTATIVE

The court will detail the nature of the operative pleading and any undisputed facts; discuss the nature of defendant’s summary judgment/adjudication motion and the opposition arguments; address some preliminary problems that should be addressed by plaintiff at the hearing, and comment on procedural problems with the reply and its attendant documents; explore the evidentiary objections submitted by both parties; and identify the relevant legal principles that frame and govern the outcome of defendant’s motion. The court will then explore the merits of defendants’ challenges and plaintiffs’ ripostes. The court will finish with a summary of its conclusions.

Operative Pleading Allegations

On December 11, 2024, plaintiffs Beatriz Espinoza and Geddilee Lanford (individual names or collectively plaintiffs) filed a complaint against defendants Vernon Construction, Inc. Province Land Company Inc., Skyway Santa Maria, LLC (defendants), and Estate of Mark Ybarra (not the personal representative of the Estate), alleging three (3) causes of action – general negligence, negligent hiring, premises liability. Province Land Company, Inc. was dismissed as a defendant on March 20, 2026. Briefly, defendants owned and controlled the property located at 3519 Mercury Drive, Santa Maria California (hereafter, real property). Plaintiff alleges that Mark Ybarra was acting as an employee of defendants at all relevant times. (¶ 7.) According to the operative complaint, Mark Ybarra owned and possessed a 1999 Ford Motorhome (hereafter, RV); defendants allowed Mr. Ybarra to park the RV on real property and live therein, knowing the RV was “deteriorated” and in a “poorly maintained” condition, with knowledge that it “posed a danger to others present on” the real property. Specifically, defendants allowed Mr. Ybarra to park the RV and stay overnight therein on the real property in exchange for services – that is, Mr. Ybarra would guard the property and secure the property from “intruders, all for the benefit of Defendants . . . .” (¶ 14.)[1] Despite this knowledge, defendants “continued to welcome, foster, and enable . . . Mark Ybarra to work and live on the [real property] in said RV. Defendants, and each of them, failed to take necessary precautions to warn of, inspect, or repair the RV and “ensure that it was sufficiently safe condition to be inhabited and allowed in the proximity of invitees and guests of the” on the real property. (¶ 12.)

According to the complaint, on January 17, 2023, plaintiffs “were invitees on Defendants’ [real property] and occupants of the RV with [] Mark Ybarra while in the course and scope of his employment . . . for defendants.” While plaintiffs were “asleep in the bedroom of the RV parked [on] the [real property] when they were awakened by [] Mark Ybarra alerting them [to] a fire inside the RV. Plaintiffs are informed and believe and thereon allege that [] Mark Ybarra exited the RV from the bedroom window first. Plaintiffs thereafter escaped the fire by exiting from the bedroom window.” Plaintiff claim that Mark Ybarra was a “habitual drug user,” and that on the night of the incident, Mark Ybarra “was using a torch to light drugs on the living room couch of the RV,” and that Mark Ybarra “fell asleep while using the torch or otherwise mishandled it causing fire that resulted” in plaintiffs’ life-altering burn injuries, “including the loss of limbs, permanent scarring, and disfigurement . . . .” Mark Ybarra was interviewed by Santa Maria Fire Investigator Douglas MacCready after the fire. It appears that Mark Ybarra is deceased.

There are three causes of action advanced against defendants. The first involves general negligence, based on Mark Ybarra’s negligent acts as an agent/employee of the defendants. According to the complaint, Mark Ybarra had a duty of care to plaintiffs, and breached that duty while in the course of his employment with defendant, by “igniting a fire and then failed to protect Plaintiffs . . . .” The second involves defendants’ acts in negligently hiring Mark Ybarra, who was a “mentally deranged individual who was incompetent, unfit and unlicensed to perform the work for which he was hired . . . .” (¶ 30.) Specifically, he was “unfit and/or incompetent to provide service services on the Property,” and this ‘created a foreseeable risk of harm to others.” Moreover, according to plaintiffs, defendants knew or should have known that Mark Ybarra was illicitly using drugs and was unfit to be charged with security responsibilities, and that his drug use was cause of the fire. (¶ 34.) As for the third cause of action for premises liability, they claim that defendant allowed the RV “to remain in state of neglect and disrepair,” was in a dangerous condition, and the dangerous condition was a cause of plaintiffs’ injuries.

Summary Judgment/Adjudication Motion Arguments and Opposition

Defendants Vernon Construction, Inc. and Skyway Santa Maria, LLC have filed a motion for summary judgment and summary adjudication to each cause of action. They raise four issues in their separate statement. The first issue involves a summary judgment motion to all three causes of action, and consists of 13 issues of undisputed fact. The thrust of the summary judgment motion seems to be that plaintiffs cannot prove the elements of any form of negligence as to defendants because there is no basis to show they are liable for the harm caused by the fire – because the RV was owned by Mark Ybarra and defendants did not have access to its interior, where the fire started; the source of the fire is unknown, although there is evidence to show that it was caused by an open flame touching combustibles; and defendants never employed Mark Ybarra. Defendants then raises summary adjudication as to the first cause of action, claiming two sub-issues, as follows: 1) there is no evidence defendants breached any duty of care in causing the fire (Issues No. 14 to 24; and 2) there was no duty of care (a special relationship) between defendants and plaintiffs because they had no control over the interior, plaintiffs presence was not foreseeable, and there was no knowledge of any drug use by Mark Ybarra. (Issue Nos. 25 to 29). Defendants also claim summary adjudication is appropriate as to the second cause of action for negligent hiring because Mark Ybarra was never an employee of defendants, and in any event there is no link between Mark Ybarra and the cause of fire nor is there any evidence defendant knew of any drug use by Mark Ybarra. (Issue Nos. 30 to 38). Finally, defendants claim summary adjudication is appropriate as to the third cause of action for premises liability because there is no evidence to show how the fire originated inside the RV and defendants did not own, possess, or control the RV on the night of the fire. (Issues No. 39 to 43.) There is great deal of overlap between the claimed undisputed issues of material fact for all four issues.

Plaintiffs dispute all issues in defendant’s separate statement but Nos. 1, 2, 3, 5, 14, 15, 18, 25, 30, 31, 32, and 39, and raise in its own separate statement 34 issues of undisputed fact. Plaintiffs contend as a result that there are sufficient issues of disputed fact as to each of the three causes of action to survive summary judgment/adjudication.

The court will first raise some procedural problems with the lawsuit and the briefing. it will then address plaintiffs’ and defendants’ evidentiary objections It will then summarize the legal principles that frame and dictate the outcome of the motion, and then address the merits of the motion. The court will then conclude with a summary of its conclusions.

Preliminary Comments

The court directs plaintiff to address an obvious deficiency on the face of the pleading it – naming a person’s estate of Mark Ybarra as a party. A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344; Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 496; Portico Mgmt. Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 474 [judgment against trust was meaningless and unenforceable.) This means that plaintiff will have to name a personal representative of the estate as a party; if no estate has been opened in probate, plaintiffs will have to initiate the process and name a personal representative. While not dispositive for today’s motion, plaintiffs are directed to act in this regard in the very near future The court expects the status of this party to be amended appropriately.

As for the present action, the court strikes the new declaration from Michelle MacDonald, filed with the reply on October 9, 2026. It is settled that in the summary judgment context, while the court has discretion to allow new evidence in reply to be submitted, it can do so only if it affords the nonmoving party an opportunity to address the new evidence. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”]; Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1307 [trial court properly considered a supplemental declaration submitted with a reply brief, where the court gave the opposing party the opportunity to testify in response]; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [trial court violated a party's due process rights by considering a supplemental declaration submitted after the party filed its opposition brief and response to a separate statement]; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [“the inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case, the trial court's consideration of such additional evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material”].) Given the time frames involved, plaintiffs will not have had an opportunity to address the new evidence.

The court also strikes defendant’s response separate statement to plaintiffs’ opposition separate statement, also filed on October 9, 2026. The court need look no further than the Code of Civil Procedure section 437c, subdivision ((b0(4), effective January 1, 2025, which reads as follows: “. . . The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.” Defendants violated this rule by responding to plaintiffs opposition separate Statement, and further, by referencing therein to new Exhibits 28 to 33 that were not included in the original motion.

Evidentiary Objections

Plaintiffs advance 17 evidentiary objections to defendants’ evidentiary proffer – 1 objection each to plaintiff Beatriz Espinoza’s and Dorothy Franks’ deposition testimony; and 15 evidentiary objections to the declaration of Michelle MacDonald.

The court overrules Objection. 1 to Beatriz Espinoza’s deposition testimony, who was asked by defense counsel whether “Mr. Ybarra ever told you that he was not supposed to have guests at the RV?”, who replied, “Yeah, he did tell us.” Clearly Ms. Espinoza has personal knowledge of what she heard; further, while it is not admissible for the truth of the matter of asserted, it is admissible for the statement’s impact on Ms. Espinoza as the listener (and the fact she had knowledge that she was not supposed to be in the RV). The same is true for Objection 2 involving the testimony of Dorothy Franks, who when asked whether “you were ever told by Mr. Ybarra that you were not allowed inside that RV when it was inside the gate,” replied “Mark has mentioned that the construction guy, whoever he is, he was only, it was only supposed to be Mark on the property.” The statement is not being admitted for its truth but its impact on Ms. Franks.

As for the 15 evidentiary objections to Ms. MacDonald’s original declaration: Ms. MacDonald is defendant’s attorney, who declares that she was a percipient witness to the desposition testimony of plaintiffs Beatriz Espinoza, Geddilee Lansford, Dorothy Franks, Santa Maria Fire Investigator Douglas MacCready, Ryan Vernon (President of defendant Vernon Construction), and Jason Fylstra (Superintendent of Vernon), and recounts what each deponent said at the deposition, supported by the copy of the specific transcript of the deposition. Plaintiff objects to each statement, raising the same claim – lack of personal knowledge, improper opinion and conclusion, and improper characterization of document evidence already before the court. To the extent the statements in each deposition are properly before the court, the fact Ms. MacDonald recounts what was said is not impermissible (to the extent it helps the court focus on the critical inquiry). Ms. MacDonald has personal knowledge of what was said, simply recounts the statement, and thus it is not an improper opinion/conclusion, and does not involve an improper characterization of each statement made. The court overrules all 15 evidentiary boilerplate objections made without nuance or analysis.

Defendants have filed 4 (four) evidentiary objections to exhibits submitted by plaintiffs (Exhibits E, F, G, I, and J). Exhibit E is the report issued by fire investigator Douglas McCready’s Fire Investigation Field Notes, dated January 17, 2023, which contains an interview of Mark Ybarra just after the fire; defendants object to the following statements recounted by MacCready from Ybarra in the report: “. . . Prior to fire, feel [sic] asleep on couch, head toward kitchen. Floor heater on. TV on. Possible [sic] had torch on, can’t remember. . . .” Exhibit F is the deposition of plaintiff Beatriz Espinoza; Exhibit G is the deposition of Ryan Vernon, an employee of defendants, who explained “I mean, I would imagine most people who an employee would be, you know, getting paid, have an expection [sic] of something like that – you know, an expectation of that. But I – I don’t know how drug addicts think, so I can’t really nswer that.” Exhibit E is the deposition of plaintiff Geddilee Lansford. And Exhibit J is the deposition from Dorothy Franks.

The court overrules defendants’ Objection 1. The court finds the fire report to be a record by a public employee pursuant to Evidence code section 1280, as it was made by a public employee within the scope of that employee’s duty, was made at or near the time of the act, and the sources of information indicate its trustworthiness. And while some statements therein appear to be hearsay, the court observes that defendants only object to certain statements made by Mr. Ybarra as recounted by MacCready (even though all arguably are hearsay). Pursuant to Evidence Code section 356, where part of a conversation is given, any other part of the conversation can be admitted to make it understood. The court finds all of the conversation is admissible for this reasons under Evidence Code section 356.[2]

The court also overrules defendants Objection 2. The statement is admissible as an admission of a party opponent, for Ryan Vernon was authorized by the party to make a statement on behalf of defendants. The statements are not irrelevant, and are not an improper opinion.

The court also overrules defendants’ Objections 3 and 4, which challenge certain statements in Exhibits F, I, and J. Defendants claim generically that in each of the depositions the deponents recounted statements made by Mark Ybarra indicating that he told them he was employed by defendants, and that Mark Ybarra allegedly did tasks for defendants after hours. Even if these statements are hearsay (and that is far from clear), defendants have failed to identify where the challenged statements can be found in the deposition. It is not the court’s responsibility to sort through the deposition and find where the challenged statements can be found. That is defendants’ obligation – and it is has not been satisfied. Accordingly, the objections are overruled.

Legal Background

When a defendant moves for summary judgment or adjudication on a cause of action, as is the case here, for which the plaintiff has the burden of proof at trial, the defendant must present evidence that either conclusively negates an element of the plaintiff’s cause of action or shows that the plaintiff does not possess, and cannot reasonably obtain, evidence necessary to establish as least one element of the cause of action. (Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5^th 657, 668.) Once the defendant makes such a showing, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of one or more material facts as to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 849-850; Code Civ. Proc., § 437c, subd. (p)(2).) The evidence of the moving party is strictly construed, while the evidence of the opposition is liberally viewed, and any doubts as to the propriety of granting the motion are to resolved in favor of the party opposing the motion. The trial court does not weigh the evidence, but instead merely determines whether a reasonable trier of fact could find in favor of the party opposing the motion, and must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. Consequently, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. (MLA Capital, LLC v. Keagle (Sept. 28, 2026, No. D086592) ___ Cal.App.5^th ____ [2026 WL 2905306, at p. 4.)

The first cause of action for general negligence is predicated on a theory of respondeat superior liability as to defendants, as plaintiffs contend in the operative pleading that Mark Ybarra was an employee or agent of defendants, working within the scope of his employment, at the time he caused the fire to occur. The essential elements of respondeat superior are that the agent was the employer’s employee or agent, the employee/agent harmed the plaintiff after violating a breach of duty of care, the breach was the but-for and proximate cause of the harm suffered by plaintiff, and employee/agent did so while acting within the scope of his or her employment (See CACI No. 3701.) A duty of care is generally a question of law for the court to decide. Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious conduct of its employees withing the scope of their employment. (Jorge v. Culinary Institute of America (2016) 3 Cal.App.5^th 382, 396.) The scope of employment has been interpreted broadly under the respondeat superior doctrine in California. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4^th 992, 1004.) Acts necessary for the employee’s comfort or convenience at work, or where the employee is tending to his own business at the same time as that of the employer, do not remove the employee/agent from the scope of respondeat superior liability unless it clearly appears that the employee/agent neither directly not indirectly could have been serving the employer. (Ibid.) The employer’s liability extends to risks inherent in or incidental to the employer’s enterprise. (Morales – Simental v. Genentech, Inc. (2017) 16 Cal.App.5^th 445, 452.)

Defendant’s second cause of action involves a claim that defendants are liable based on principles of negligent hiring, a direct liability theory. (Defino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4^th 790, 815 [“Liability for negligent . . . retention of an employee is one of direct liability for negligence, not vicarious liability. [Citation.]”].) An employer may be liable to a third person for the employer’s negligence in hiring or training an employee who is incompetent or unfit. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4^th 1133, 1139.) “Liability for negligent hiring . . . is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339) Negligence liability will be imposed on an employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Liability results because the “the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment.” (Roman Catholic Bishop, at p. 1565, quoting Rest. 2d Agency, § 213, com. d;) More specifically, the employer’s duty to exercise reasonable care in the selection of its employees “is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk or hard to third persons in light of the particular work to be performed.” (Federico v. Superior Court (1997) 59 Cal.App.4^th 1207, 1214.) California follows this rule, which has been incorporated into the Restatement Third of Agency. (Phillips, supra, 172 Cal.App.4^th at pp. 1139-1140.) Establishing negligence liability under this rule requires “some nexus or causal connection between the principal’s negligence in selecting or controlling an actor, the actor’s employment or work, and the harm suffered by the third party.” (Phillips, supra, at p. 1140.)

The third cause of action also involves negligence, but it is based on a common law theory of premises liability. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is s form of negligence ].) Accordingly, the elements of a premises liability claim are legal duty of care, breach of that duty, and proximate cause resulting in injury. (Moses v. Roger-McKeever (2023) 91 Cal.App.5^th 172, 177-178.) Landowners and possessors have a common law duty to maintain their land in their possession and control in a reasonable safe condition as to avoid exposing others to an unreasonable risk of injury. (Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5^th 917, 925.) Where dangerous or defective condition of the property, which must cause the injury, has been created by reason of the negligence of the owner of the property or his employee acting within scope of his employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Knowledge is imputed to the employer. (CACI 1012; Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806.) Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises. (Kesner v. Superior Court (2016) 1 Cal.5^th 1132, 1158.) Courts have held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. (Ortega v. Kmart Corp. (2001) 26 Cal.4^th 1200, 1206.)

Merits

With this legal background in mind, the court rejects defendants’ summary judgment motion as to all three causes of action based on the first claimed 13 issues of undisputed fact listed in their Separate Statement. Defendants’ “Memorandum of Points and Authorities” does not separately address or raise summary judgment generally, instead focusing on each of the three causes of action via summary adjudication, even though defendant’s separate statement lists 13 issues of undisputed fact (as claimed by defendants) that allegedly support a summary judgment motion as three causes of action. The court takes the matter as it comes to it. “It is settled that only a single disputed material fact issue defeats the motion [for summary judgment]. If there is one, single material fact in dispute, the motion must be denied.” (Weil & Brown, California Practice Guide (The Rutter Group 2026), Civil Procedure Before Trial, ¶ 10:28, italics added.) Here, for example, defendant claims that material issue No. 12 supports summary judgment as to all three causes of action because decedent Mark Ybarra “was never an employee of defendants,” citing the deposition of Ryan Vernon and deposition of Jason Fylstra. Each deponent testified that Mark Ybarra was not an employee. Plaintiffs dispute this in its opposition separate statement, citing to (inter alia) the deposition of Jason Fylstra himself, a corporate officer of defendants, who testified to an arrangement between defendants and Mr. Ybarra that the latter would be able to park on site, plug into the power, but only on the condition that if anything were to happen on the property, --“if he noticed anything while he was there, just to call the police. . . . .” Whether Mr. Ybarra was an employee or not, he arguably was at least acting as an agent of defendants (much as a security guard would be), and this is sufficient to establish a relationship for purposes of respondeat superior liability of the principal (at least as to third party individuals such as plaintiffs). (See, e.g., Barenbord v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5^th 70, 85 [a principal who personally engaged in no misconduct may be vicariously liable for the tortious act committed by an agent within the scope of the agency,’ as agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control and consent by the other so to act].) There are sufficient disputed issues of act to preclude summary judgment as presented.

If defendant is to prevail, it will be via summary adjudication, not summary judgment.

As for summary adjudication to the first cause of action for general negligence, the court is not persuaded by defendants’ argument that there are no disputed issues of material fact, at least as argued by defendants. Defendants contend that they are entitled to summary adjudication as to this cause of action as a matter of law because there is no evidence to show any act or omission to act by them caused the fire. This argument, however, ignores the reason and scope of respondeat superior liability. It is not the personal acts of defendants that are dispositive, but the acts of their employee/agent. Further, while it may be true that neither the plaintiffs nor witness Dorothy Franks “know” how the fire started, Santa Maria Fire Investigator Douglas MacCready testified that the probable origin of the fire came from inside the RV; he excluded an electrical source or a source exterior to the RV, testified that the origin of the fire was near the floor between the chair and pullout bed inside the RV, and that a “probable ignition source” was a butane lighter torch. The only evidence before the court indicates that Mark Ybarra was using a butane torch (based on favorable inferences of the evidence this court must give the nonmoving party’s evidence). Mr. MacCready indicated that he found an empty “propane-type canister and torch head detached” observed “on the floor adjacent to couch,” which was located in the area of origin. In other words, the fire started probably because of an open flame touch combustibles in the origin area. He also observed that there was no evidence of arson. By logical inference, the only person in the origin area was Mark Ybarra. Accordingly, while there is no direct evidence Mark Ybarra caused the fire, a jury could find (based on strong circumstantial evidence under a preponderance of evidence standard) that Mark Ybarra was the only one who could have started and caused the fire. Disputed evidence thus exists on this critical topic.

Defendants argue that just because Mark Ybarra was on the premises when the fire broke out “does not mean he was the cause.” In support of this contention they cite to Miranda v. Bomel Construction Company (2010) 187 Cal.App.4^th 1326. In Miranda, plaintiff sued defendant, who stockpiled excessive dirt from a large construction project in vacant lot next to plaintiff’s office. Miranda contracted a fungal disease, and sued the defendants (the general and subcontractor) for general negligence, claiming they “carelessly and unlawfully allowed the excavated dirt to be in a dangerous, defective and unlawful condition as to cause [plaintiff] to sustain severe injuries and damages when he breathed the injurious particles from the excavated dirt.” (Id. at p. 1328.) The trial court granted summary judgment in favor of defendants.

The appellate court affirmed. Defendants had met their burden of proving that it was only possible, not a reasonable medical probability, that Miranda contracted the fungal disease by inhalation from a spore that originated from the excavated soil at issue. The experts testified that “fungus was endemic to a large portion of California,” and studies have shown airborne fungal spores can travel in the wind; given that over “one-third of the population in the San Joaquin Valley tests positive for exposure to the fungus, and due to the great number or reasons for soil disturbance, “the exact source (home, recreation, work, travel, etc.) of the exposure cannot be determined absent scientific data . . . . It was undisputed that Miranda had no such scientific data.” (Id. at p. 1336.) And while Miranda had submitted expert declarations showing his exposure to dust was a critical factor, plaintiff’s experts failed to “account for the undisputed facts showing there were other reasonable and likely sources for the fungus spore causing Miranda’s injury.” Nor was the case analogous to asbestos exposure cases, because while plaintiff demonstrated he was exposed to dirt and dust for several months, he failed to establish that the dirt mounds at issue were defective, harmful, fungus-containing or disease packed dust or air (and thus could not make the showing of exposure to a harmful product). (Id. at p. 1339.)

This case is unlike Miranda, and more like the case the Miranda appellate court distinguished - Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4^th 1187. “Miranda argues that like the Sarti plaintiff who did not have to provide direct evidence linking her food poisoning with some specific food, he should not be required to provide direct evidence linking his illness with a specific source of fungus. The analogy, however, cannot be made because the Sarti plaintiff submitted strong circumstantial evidence she ate food at a specific restaurant with documented unsanitary conditions that permitted cross-contamination of other foods with raw chicken, a specific food known to contain the bacteria causing her food poisoning. From this substantial evidence the jury could make the reasonable inference there was a causal link between a specific restaurant’s unsanitary conditions and her food poisoning. In contrast, Miranda submitted evidence the soil, and sometimes the air, in Southern California is known to contain the pathogen causing plaintiff’s disease. This is evidence from which the jury could link dust inhalation in Southern California and his Valley Fever. However, there is no circumstantial evidence from which the jury could reasonably infer [that the excavated soil at issue], as opposed to any other specific dirt pile, was the source of the [spore] that infected Miranda. [The soil at issue] was only one of many reasonably possible sources of dust that may have contained the pathogen. This case is governed by the same basic rules of causation as other tort cases, and we agree Miranda failed to create a triable issue of material fact.” (Id. at p. 1342.)

This case is more like Sarti. There is strong circumstantial evidence to show the cause of the fire – acts by Mark Ybarra, focusing most likely on his use of a burn torch that ignited fabric in the RV – rather than the more attenuated evidence showing the cause of Miranda’s illness. The origin of the fire, the expert testimony, and the exclusion of other possibilities more clearly and definitively points to Mr. Ybarra than did the evidence offered in Miranda. Defendants’ reliance on Miranda v. Bomel Construction, Inc. is therefore misplaced.

Defendants claim that summary adjudication as to the first cause of action for general negligence is also appropriate because they (defendants) had no duty of care to plaintiffs (based on a special relationship with plaintiffs), as 1) they had no control over the interior of the RV; 2) the presence of the plaintiffs in the RV was not foreseeable because Mark Ybarra was told that he could not have guests and 3) defendants were not aware that Mark Ybarra used drugs. The flaw in this argument (as was true to the argument above) is defendants’ failure to recognize the basis of their liability is not direct but vicarious (based on principles of respondeat superior). . There can be little doubt that Mr. Ybarra had a general duty of care to plaintiffs to protect them from harm (including preventing harm from a fire he starts), and the issue, for purposes of respondeat superior liability, is thus different. A defendant who is innocent of any fault may nevertheless be held to answer for the wrongdoing of an agent or employee – that is, whether an employer or principal is vicariously liable for the acts of an agent/employee will depend on whether the agent/employe was acting within the scope of the employment or agency No special relationship is required to impose liability. Whether liability attaches to defendants for plaintiffs’ injuries depends on whether Mr. Ybarra’s acts in causing the fire was within the scope of his agency relationship with defendants. This situation is to contrasted with one involving a defendant’s duty of care to protect plaintiff by injuries caused by a third party acting outside the scope of employment. In that situation a defendant has a duty of care to protect plaintiff from injuries caused by the third party only when a special relationship between the defendant and plaintiff exists (i.e., thus given rise to an affirmative duty to protect). (Brown v. USA Taekwondo (2021) 11 Cal.5^th 204, 209, 215 [a defendant may have an affirmative duty to protect the plaintiff from harm by a third party even though the risk of harm is not of the defendant’s own making if a special relationship exists].)

The only issue at play is whether Mr. Ybarra started the fire as an employee/agent of defendants while he was acting within the scope of the agency/employment. This is usually a question of fact, and becomes a question of law only if there are no conflicting inferences. (Lisa M. v Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.) Conflicting inferences exist on this record. For example, tortious conduct that violates an employer’s express orders may nonetheless be within the scope of employment. So may acts that do not benefit the employer directly, or are willful or malicious in nature. Indeed, as noted, the scope of employment has been interpreted broadly in California under the respondent superior doctrine. The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful acts does not preclude attribution of liability to an employer. Acts necessary to the comfort, convenience, health, and welfare of the employee while at work, through strictly personal and not acts in the service of defendant, do not take the employee outside the scope of employment/agency. (Juarez v. San Bernardino City Unified School Dist. (2024) 106 Cal.App.4^th 1213, 1221.) These rules apply, and strongly indicate the issues cannot be determined as a matter of law but by the trier of fact.

Contrary to defendants’ argument, it does not matter (for purposes of respondeat superior liability) whether defendant was actually unaware that Mr. Ybarra was a drug user. As a general rule, knowledge of an agent (such as an employee) is imputed to his or her principal (defendants). (Civ. Code, § 2332; 3 Witkin, Summary of Cal. Law (11^th ed. 2026) Agency and Employment, § 161, p. 216.) Further, California courts have drawn a distinction between situations in which the agent acts in an adverse capacity and those in which the agents acts for the principal but has a personal adverse interest. Here, it is true defendants told Mr. Ybarra that he could not have visitors over in in his RV at night. And it is true that defendant likely did not know Mr. Ybarra was a drug user. But neither of these facts alone allows the court to determine whether Mr. Ybarra was acting outside the scope of his employment/agency under the principles enunciated above (at least as a matter of law). He it is still possible to find that he was acting as an agent when he started the fire even though he was doing something personal and even though he disobeyed defendants’ orders about guests. For example, there is no evidence to show that Mr. Ybarra committed negligence out of personal malice unconnected to the employment. In fact, in a broad way, the fire was arguably an outgrowth of Mr. Ybarra’s employment/agency, as he started the fire during the time he was guarding defendants’ property and under a duty to call the police if something untoward happened. As our high court has observed, an employer is liable for risks arising out the employment – and a risk arguably arises out of the employment when 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 the other costs of the employer’s business. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaking by the employer. (Perez v. Van Groningen & Songs, Inc. (1986) 41 Cal.3d 962, 968.) “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. However, ‘foreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘foreseeability’ as a test for respondeat superior 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. [Citations.]” (Italics added; see Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) It is arguably foreseeable that an agent, charged with protecting the property while staying overnight in an RV, will have to use fire for cooking, heating, etc. It is arguably is foreseeable that the agent will have guests despite orders to the contrary. In this vein it is arguably foreseeable that a fire may be negligently set as an outgrowth of that employment/agency. Contrary to defendants’ claims, this is not speculation, conjecture, imagination or guesswork. While the inferences may not be compelling, they are nevertheless possible. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4^th 149, 161.) The ultimate determination should therefore be made by the trier of fact, not the court. “Where the facts of the case make it arguable whether the employee has acted within the scope of his employment [or agency], then the scope of employment [agency] issue is one properly decided by the trier of fact. However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138.) This is the precise situation the court faces.

Nothing in defendants’ reply disabuses the court of this conclusion. Again, defendants’ focus in reply ignores the import and scope of their liability under respondeat superior principles, focusing their arguments on the absence of evidence showing defendants’ own personal acts were responsible for causing the fire. The cases cited by defendants in reply are telling in this regard – Saelzler v. Advanced Group 400 (2001) 25 Cal.4^th 763, Leslie v. Perry & Associates (1996) 43 Cal.App.4^th 472, and Leyva v. Garcia (2018) 20 Cal.App.5^th 1096. None explored the import and scope of respondeat superior liability when a defendant’s employee is responsible for the cause of the harm. Saelzler involved an issue about the liability of apartment owners and other business enterprises to persons injured on their premises by the criminal acts of others, based on the business owners’ negligent failure to provide adequate security measures to protect those who enter their property. (Salezler, supra, at p. 766.) The same is true for Leslie. (Leslie, supra, at p. 476 [victim was raped in garage of a supposed secure apartment building owned by defendants, and plaintiff sued defendants contending they were negligent because they failed to repair a broken security gate and that this negligence caused the rape by a third person].) In Leyva, plaintiffs sued defendant landlord after an upstairs fire caused injury; the evidence was undisputed that the heat source of the fire’s ignition was a gas wall heater in the upstairs apartment, although it was uncertain “what actually caused the fire to ignite.” Defendants presented uncontested expert evidence about two reasonable possibilities for the source of the fire – either the heater malfunctioned, or plaintiffs placed combustible material too close to the heater. The trial court found plaintiff could not show causation as a result of these competing causes, and the appellate court affirmed.[3] None of these issues are implicated here.[4]

The court overrules the summary adjudication motion to the first cause of action for general negligence under a respondeat superior theory, as there are disputed issues of material fact whether Mark Ybarra was acting within the scope of his agency when he allegedly caused the fire.

The result is different for the second cause of action based on negligent hiring, which involves concepts of direct (not vicarious) liability. As our high court has made clear, a negligent hiring cause of action requires defendants to have an affirmative duty of care to protect the plaintiffs from a third party – in this case Mark Ybarra. Absent a special relationship between defendants and plaintiffs, there can be no individual liability to third parties for negligent hiring, retention or supervision. (C.A. William S. Hart Union High School Dist. (2012) 53 Cal.4^th 861, 877.) A special relationship between the defendant and the victim is one that gives the victim a right to expect protection from the defendant. (Brown, supra, 11 Cal. 5^th at pp. 215-216, fn. omitted.) Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) The Restatement Third of Torts identifies several categories of special relationships where an individual “owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.” (Rest.3d Torts, Liability for Physical and Emotional Harm, § 40, subd. (a).) Among other categories, the list includes (1) a common carrier; (2) an innkeeper; (3) “a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises; (4) “an employer with its employees who, while at work, are: [¶] (a) in imminent danger; or [¶] (b) injured or ill and thereby rendered helpless”; (5) “a school with its students”; (6) a landlord with its tenants; and 7) a custodian with those in its custody. Plaintiffs do not fall into any of these categories. The proprietor-customer relationship is not applicable, and as far as defendants are concerned, plaintiffs were not invitees – far from it in fact. The uncontested evidence shows that defendants in fact expressly told Mr. Ybarra that no invitees were permitted on the construction site at any time. And there is no evidence that defendants controlled the RV where plaintiffs slept, an attribute of the duty analysis. (Colonial Va & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5^th 487, 497 [a defendant’s control over the property is sufficient to create a duty to protect owed to person’s using the property].)

A duty of care determination is a legal question to be decided by the court. Under the facts presented, there is no evidence to indicate defendants had a special relationship with plaintiffs, thereby creating an affirmative duty of care, which is a condition predicate to advancing a negligent hiring cause of action. And there is no reasonable basis to conclude that plaintiff can advance such theory based on the evidence before the court. Accordingly, the court grants summary adjudication as to the second cause of action for negligent hiring.

The court also grants summary adjudication as to the third cause of action for premises liability. The operative pleading makes it clear that the dangerous condition (necessary to advance a premises liability cause of action) is based exclusively on the supposed lack of functionality, viability and safety of the RV that was allowed to remain on the real property. (¶ 37.) The court does not need to explore whether there are disputed issues of act about whether defendants knew or had constructive knowledge of this supposed dangerous condition (see, e.g., Ortega, supra, 26 Cal.4^th at p. 1203), because even if the court’s assumes a dangerous condition existed, there is absolutely no evidence (and it appears none can be presented) to show that this supposed dangerous condition of the RV was an actual and proximate cause of the fire and/or of plaintiff’s injuries. There are disputed issues of material fact to support the claim that Mark Ybarra, while possibility acting as an agent of defendants and during the course of that agency, negligently set fire to the RV, and this act caused harm to plaintiffs. But there is no evidence to indicate that the condition of the RV itself (assuming that it constitutes a dangerous condition) caused or even exacerbated plaintiffs’ injuries. The only evidence presented by Santa Maria Fire Investigator Douglas MacCready indicated the fire started between a chair and pullout bed in the RV; he testified there were no signs of an electrical fire or problems with the heater; and no evidence of an exterior cause. There is nothing in the proffered evidence, which plaintiffs relies on, to indicate functionality, viability, and/or safety of the RV (the supposed dangerous condition alleged by plaintiff) was a cause of the fire in any way. At trial, plaintiff has the burden of proof to show causation, and must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that dangerous condition and defendant’s conduct with regard to it was a cause in fact of plaintiff’s injuries. (Ortega, supra, at p. 1205.) A mere possibility of such causation is insufficient; and when the matter remains one of pure speculation or conjecture, it becomes the duty of the court to direct a verdict. (Id. at p. 1206.) Defendants have demonstrated that there is no evidence that a dangerous condition of the RV (or any other property) caused the injuries (as opposed to the acts of Mark Ybarra), and plaintiffs have manifestly failed to fill this evidentiary void. The court has examined plaintiffs’ opposition separate statement carefully, and its exclusive focus is on what defendant failed to do; there is no evidence or suggestion that the supposed dangerous condition of the RV probably caused plaintiffs’ injuries. This evidentiary lacuna is fatal to the premises liability cause of action.

The court grants summary adjudication as to the third cause of action for premises liability.

Summary

The court strikes the new evidence submitted with defendants’ reply (the new declaration from attorney Michelle MacDonald), as well as the response separate statement filed by defendants.
The court overrules all evidentiary objections submitted by both parties.
The court overrules defendants’ summary judgment motion as to all three causes of action.
The court overrules defendants’ summary adjudication as to the first cause of action for general negligence under a respondeat superior theory. There are disputed issues of material fact about whether Mark Ybarra was the cause of the fire that injured plaintiffs, and the court cannot determine on this record as a matter of law whether Mark Ybarra was acting within the scope of any assumed agency/employment when the fire was started. This should be for a trier of fact to determine.
The court grants defendants’ summary adjudication motion as to the second cause of action for negligent hiring and the third causes of action for premises liability. There is no evidence to show plaintiff has a special relationship with defendants (for purposes of duty of care) as to the second cause of action. And there is no evidence (none) that any assumed dangerous condition of the property (even if it includes the RV) was a cause of the fire and thus a cause of plaintiffs’ injuries; nothing but rank speculation supports that proposition, and that is not enough to survive.
Defendants are directed to provide a proposed order for signature commensurate with the court’s ruling.
There is a CMC scheduled today. The parties should be prepared to discuss how this case will proceed.

[1] In undisputed Issue No. 18, Mark Ybarra was allowed overnight access to the construction by defendants in exchange for his presence on the constructive site (on the real property) to act as a “scarecrow,” which was to deter theft; he was changed with calling police if he saw anything amiss.

[2] The court also observes that during the deposition of Douglas MacCready these very same notes were admitted without objection (as Exhibits 10, 11, 12, 13, and 14). Evidence Code section 356 applies for this reason as well.

[3] Here, by contrast, strong circumstantial evidence shows that defendants’ possible agent was the sole cause of the fire – not acts of plaintiffs (as was the case in Leyva).

[4] Defendants also cite to Ortega, supra, 26 Cal.4^th 1200, but this case also is inapposite to the first cause of action under a respondeat superior theory because in Ortega the issue of liability rested exclusively on a premises liability theory – a dangerous condition of property involving a puddle of milk on the floor upon which plaintiff slipped. Defendant and its employees were treated similarly. In that regard plaintiff must show that defendant owner has actual and constructive knowledge of the dangerous condition in sufficient time to correct it. The Ortega court concluded that when plaintiff has no evidence of the source of the dangerous condition or the length of time it existed, plaintiff can rely solely on the owner’s failure to inspect the premises within a reasonable time in order to establish an inference that the defective condition existed long enough for a reasonable person exercise ordinary care to have discovered it. (Id. at p. 1203.) Ortega does not help defendants as to the first cause of action.

Judicial Branch of California

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