Kasperzyk v. Shelter Security Services, Inc. et al

Filing 36

ORDER by Judge Edward M. Chen granting 9 Defendant Shetler Security Services, Inc.'s Motion to Consolidate Cases; and granting 23 Defendant Lucasfilm Ltd.'s Motion to Dismiss with Leave to Amend (emclc1, COURT STAFF) (Filed on 11/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JORDAN KASPERZYK,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
SHETLER SECURITY SERVICES, INC.,
et al.,

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No. C-13-3358 EMC

Defendants.
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ORDER GRANTING DEFENDANT
SHETLER SECURITY SERVICES,
INC.’S MOTION TO CONSOLIDATE
CASES; AND GRANTING DEFENDANT
LUCASFILM LTD.’S MOTION TO
DISMISS WITH LEAVE TO AMEND
(Docket Nos. 9, 23)

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Plaintiff Jordan Kasperzyk has filed suit against Defendants Shetler Security Services, Inc.

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(“SSS”); Lucasfilm Ltd.; Letterman Digital Arts Ltd.; Skywalker Properties1; and Michael Shetler.

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The current operative complaint is the first amended complaint (“FAC”). In the complaint, eleven

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causes of action are pled. However, only one claim has been pled against Lucasfilm Ltd. – i.e., the

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final claim for negligence in hiring, supervision, or retention. Currently pending before the Court is

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(1) SSS’ motion to consolidate the instant case with the related case (Case No. 13-3383 EMC) and

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(2) Lucasfilm’s motion to dismiss the claim for negligence.

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No party has opposed the motion to consolidate. Furthermore, consolidation is appropriate

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because the genesis of each federal action came from the same state court case. Accordingly, the

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motion to consolidate is hereby GRANTED. As for the motion to dismiss, having considered the

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parties’ briefs and accompanying submissions, as well as the oral argument of counsel, the Court

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hereby GRANTS that motion as well, but gives Mr. Kasperzyk leave to amend.

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Although Skywalker Properties is not listed in the caption as a defendant, it is named as a
defendant for one of the causes of action (the eleventh).

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I.

FACTUAL & PROCEDURAL BACKGROUND

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In the FAC, Mr. Kasperzyk alleges as follows.

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Mr. Kasperzyk is a licensed security guard. See FAC ¶ 14. In 2008, he was hired by a

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company named Advanced-Tech, which at that time provided security at Lucasfilm’s Letterman

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Digital Arts Center (located in the Presidio). See FAC ¶ 14. As a new hire with Advanced-Tech,

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Mr. Kasperzyk was required to join a local union. See FAC ¶ 17.

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In January 2010, while working for Advanced-Tech, Mr. Kasperzyk hurt his back “when a

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motorist whose car he had ticketed for over parking [at the Center] struck him with his car.” FAC ¶

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26. He was able to return to work but “on a limited basis, with medically prescribed work
restrictions. These work restrictions prohibited him from any heavy lifting, and required a post that

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For the Northern District of California

United States District Court

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would permit him to vary his position by alternately sitting or standing occasionally for several

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minutes at a time to relieve the stress on his back.” FAC ¶ 28.

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In or about May 2010, Advanced-Tech lost its contract with Lucasfilm to provide security to

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SSS. See FAC ¶¶ 7, 29. Advanced-Tech employees were told that Advanced-Tech would be

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leaving but that “anyone who wished to remain at the Center and work for [SSS] could do so by

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simply signing up.” FAC ¶ 29. Mr. Kasperzyk did so. See FAC ¶ 29. Mr. Kasperzyk’s allegations

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suggest that the contract for security services was ultimately entered into by SSS and Letterman

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Digital Arts Ltd. (and not Lucasfilm). See FAC ¶ 31 (referring to an Independent Contract

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Agreement between SSS and Letterman Digital Arts Ltd.); see also Def.’s RJN, Ex. A (Independent

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Contractor Agreement for the Provision of Security Services, dated May 1, 2010, between Letterman

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Digital Arts Ltd. and SSS).2

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In November 2010, Mr. Kasperzyk was presented with a letter from SSS in which it stated

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that his current posting was being eliminated at the behest of the client; that it was not able to

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identify a posting where he could perform the essential job functions, either with or without

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Under Ninth Circuit law, the incorporation-by-reference doctrine permits a court to “‘look
beyond the pleadings without converting the Rule 12(b)(6) motion into one for summary judgment.’
Specifically, courts may take into account ‘documents whose contents are alleged in a complaint and
whose authenticity no party questions, but which are not physically attached to the plaintiff’s
pleading.’” Davis v. HSBC Bank, 691 F.3d 1152, 1160 (9th Cir. 2012).

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reasonable accommodation; and that it was therefore terminating his employment. See FAC ¶ 35.

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According to Mr. Kasperzyk, nothing stated in the letter was actually true. See FAC ¶ 36.

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Mr. Kasperzyk subsequently contacted the union to challenge the termination. At a

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mediation held in April 2011, SSS offered Mr. Kasperzyk his job back, and he accepted. See FAC

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¶¶ 37-38. However, just two days later, when Mr. Kasperzyk went to obtain a letter verifying his

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employment with SSS, he was told by management that the client did not want him back and that he

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should vacate the premises. See FAC ¶ 39. Mr. Kasperzyk interpreted the client to mean Lucasfilm

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and Andres Noyes. See FAC ¶ 39. According to Mr. Kasperzyk, Mr. Noyes was actually an

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employee of Skywalker Properties Ltd. but “conducted himself as the Director of Security for
Lucasfilm Ltd.,” directing SSS “employees how to perform their jobs for the exclusive benefit of

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For the Northern District of California

United States District Court

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Lucasfilm.” FAC ¶ 8.

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Based on, inter alia, the above allegations, Mr. Kasperzyk has filed a number of claims

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against SSS, including claims for disability discrimination, breach of contract, retaliation, and fraud.

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As to Lucasfilm, however, Mr. Kasperzyk has asserted only one cause of action, namely, a claim for

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negligence in hiring, supervision, or retention. The substance of the allegations in support of the

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claim are as follows:

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109.

[SSS] was unfit for the job that it contracted for.

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110.

Plaintiff believes that Lucasfilm knew, or should have known
that [SSS] was unfit and/or incompetent, and that this unfitness
and/or incompetence created particular risk to Plaintiff.

111.

Plaintiff alleges that it was [SSS’s] incompetence and unfitness
that harmed Plaintiff by causing [him] to lose his employment,
and that Lucasfilm’s, Letterman’s, and Skywalker’s negligence
in hiring, supervising and retaining [SSS] was a substantial
factor in causing Plaintiff’s harm.

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FAC ¶¶ 109-11.

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II.
A.

DISCUSSION

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

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failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

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dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

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Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

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must take all allegations of material fact as true and construe them in the light most favorable to the

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nonmoving party, although “conclusory allegations of law and unwarranted inferences are

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insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

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2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough

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facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see

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also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted

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For the Northern District of California

United States District Court

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unlawfully.” Iqbal, 129 S. Ct. at 1949.

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B.

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Lucasfilm’s Arguments
In its motion, Lucasfilm argues that the claim for negligence in hiring, supervision, or

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retention should be dismissed for three reasons: (1) because the common law claim is barred by the

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federal enclave doctrine; (2) because, even if not so barred, Lucasfilm was never a party to any

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security contract with SSS (rather, Letterman Digital Arts Ltd. was the contracting party); and (3)

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because, even if Lucasfilm hired or retained SSS, a negligent hiring claim is not recognized under

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California law between the hirer of a contractor and the contractor’s employee.
At this juncture, the Court declines to rule on the federal enclave issues.3 The Court does so

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because, even if the Court were to resolve the federal enclave issues in Mr. Kasperzyk’s favor, his

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complaint as pled would still fail to state a claim for relief.

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(1)

what is the governing analysis, see Paul v. United States, 371 U.S. 245 (1963); Howard v.
Commissioners of Sinking Fund, 344 U.S. 624 (1953); Evans v. Cornman, 398 U.S. 419
(1970); and

(2)

whether 16 U.S.C. § 457 applies only where there are physical injuries suffered on a federal
enclave (as opposed to emotional or other nonphysical injuries such as economic injury).

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These issues include:

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C.

Employer

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Lucasfilm argues that, even if the Court were to rule against it on the federal enclave issues,

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it still is entitled to a dismissal because Mr. Kasperzyk is claiming negligent hiring, supervision, or

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retention of SSS, and the only party who hired, supervised, or retained SSS was Letterman Digital

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Arts Ltd. (and not Lucasfilm), the party which entered into a contract with SSS for security services

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at Letterman Digital Arts Center. See FAC ¶ 31 (referring to an Independent Contract Agreement

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between SSS and Letterman Digital Arts Ltd.); see also Def.’s RJN, Ex. A (Independent Contractor

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Agreement for the Provision of Security Services, dated May 1, 2010, between Letterman Digital

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Arts Ltd. and SSS).
In response, Mr. Kasperzyk asserts that the lack of a contractual relationship between

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For the Northern District of California

United States District Court

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Lucasfilm and SSS is immaterial because “[t]he existence of an employer-employee relationship is

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not contingent on any express or written contract between the parties.” Opp’n at 16-17. “For

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instance, Lucasfilm was a joint employer of [SSS] together with Letterman Digital Arts based on the

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four-factor ‘economic reality’ test articulated in Bonnette v. Cal. Health and Welfare Agency, 704

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F.2d 1465, 1470 (9th Cir. 1983).” Opp’n at 17 (arguing that Mr. Noyes – an employee of Skywalker

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Properties – “held himself out as an employee of Lucasfilm, supervised and/or had input in the

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hiring or firing of [SSS] and its employees; supervised [SSS] employees’ schedules in twice-weekly

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meetings; determined the rate and method of payment; [etc.]”). Mr. Kasperzyk also contends that

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“Letterman acted as Lucasfilm’s agent in employing [S§].” Opp’n at 17.

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The problem for Mr. Kasperzyk – as Lucasfilm points out – is that there are insufficient

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factual allegations in the FAC (as pled) to support the above theories. At best, Mr. Kasperzyk has

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simply made the conclusory allegation that (1) Mr. Noyes “conducted himself as the Director of

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Security for Lucasfilm Ltd.,” directing SSS “employees how to perform their jobs for the exclusive

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benefit of Lucasfilm,” FAC ¶ 8, and that (2) “each and every defendant was the agent or employee

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of each and every other defendant.” FAC ¶ 13. Accordingly, as Lucasfilm argues, dismissal is

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appropriate as Mr. Kasperzyk has not pled with specificity a plausible claim of employer liability for

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any entity other than Letterman Digital Arts Ltd. However, Mr. Kasperzyk shall be given leave to

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amend on this point to provide more specific allegations establishing any other defendant as a

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responsible party.

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C.

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Liability of Hirer of Independent Contractor
According to Lucasfilm, even if it hired or retained SSS, a negligent hiring claim is not

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recognized under California law between the hirer of a contractor and the contractor’s employee,

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and therefore dismissal is proper. In making this argument, Lucasfilm relies on a series of California

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Supreme Court decisions beginning with Privette v. Superior Court, 5 Cal. 4th 689 (1993).

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In analyzing Lucasfilm’s Privette argument, the Court begins by taking into account the
“common law rule that an individual who hires an independent contractor generally is not liable for
injuries to others caused by the contractor’s negligence in performing the hired work.” Toland v.

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For the Northern District of California

United States District Court

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Sunland Hous. Grp., Inc., 18 Cal. 4th 253, 258 (1998). An important exception to this rule is the

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peculiar risk doctrine. Under this doctrine, “one injured by inherently dangerous work performed by

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a hired contractor can seek tort damages from the person who hired the contractor.” Id. The

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doctrine was created “in the late 19th century to ensure that innocent third parties injured by

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inherently dangerous work performed by an independent contractor for the benefit of the hiring

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person could sue not only the contractor, but also the hiring person, so that in the event of the

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contractor’s insolvency, the injured person would still have a source of recovery.” Id.

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As summarized in Toland, the California Supreme Court held in Privette that,

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under the peculiar risk doctrine[,] the hiring person’s liability does not
extend to the hired contractor’s employees [as opposed, e.g., to
neighboring landowners or innocent bystanders] [b]ecause the
Workers’ Compensation Act shields an independent contractor from
tort liability to employees[.] [A]pplying the peculiar risk doctrine to
the independent contractor’s employees would illogically and unfairly
subject the hiring person, who did nothing to create the risk that
caused the injury, to greater liability than that faced by the
independent contractor whose negligence caused the employee’s
injury.

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Id. at 256 (emphasis added). In Toland itself, the California Supreme Court went on to hold that
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Privette barred a hirer of an independent contractor from being held liable to the contractor’s
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employee whether the peculiar risk theory was predicated on § 413 or § 416 of the Restatement
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Second of Torts.4 See generally id. In Camargo v. Tjaarda Dairy, 25 Cal. 4th 1235 (2001), the

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California Supreme Court further held that the reasoning in Privette and Toland generally barred

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negligent hiring claims based on § 411 of the Restatement of Torts as well.5 See id. at 1244 (stating

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that, “[f]or the same reasons, an employee of a contractor should be barred from seeking recovery

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from the hirer under the theory of negligent hiring set forth in section 411” – i.e., “‘it would be

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unfair to impose liability on the hiring person when the liability of the contractor, the one primarily

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responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation

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coverage’”).

Supreme Court essentially found an exception to Privette, based in part on § 414 of the Restatement

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For the Northern District of California

However, in Hooker v. Department of Transportation, 27 Cal. 4th 198 (2002), the California

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United States District Court

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Second of Torts.6 More specifically, while a “hirer of an independent contractor is not liable to an

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employee of the contractor merely because the hirer retained control over safety conditions at a

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worksite, . . . a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained

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control affirmatively contributed to the employee’s injuries.” Id. at 202 (emphasis in original).

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Under section 413, a person who hires an independent contractor to do
inherently dangerous work, but who fails to provide in the contract or
in some other manner that special precautions be taken to avert the
peculiar risks of that work, can be liable if the contractor’s negligent
performance of the work causes injury to others. Under section 416,
even if the hiring person has provided for special precautions “in the
contract or otherwise,” the hiring person can nevertheless be liable if
the contractor fails “to exercise reasonable care to take such
precautions” and the contractor’s performance of the work causes
injury to others.

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Toland, 18 Cal. 4th at 256-57.
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“Section 411, entitled ‘Negligence in Selection of Contractor,’ PROVIDES: ‘An employer
is subject to liability for physical harm to third persons caused by his failure to exercise reasonable
care to employ a competent and careful contractor [¶] (a) to do work which will involve a risk of
physical harm unless it is skillfully and carefully done, or [¶] (b) to perform any duty which the
employer owes to third persons.’” Camargo, 25 Cal. 4th at 1241.
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“Section 414 provides: ‘One who entrusts work to an independent contractor, but who
retains the control of any part of the work, is subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to
exercise his control with reasonable care.’” Hooker, 27 Cal. 4th at 201.

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Thus, under Privette, a hirer of an independent contractor can be held liable for injuries to

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the contractor’s employee only in the limited circumstances identified in Hooker. Mr. Kasperzyk

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contends that his case falls within the exception provided for in Hooker – i.e., because Lucasfilm

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retained control over working conditions at Letterman Digital Arts Center and Lucasfilm’s exercise

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of retained control affirmatively contributed to his injury. See Opp’n at 18-19.

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Mr. Kasperzyk, however, has not adequately pled factual allegations to support his Hooker

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theory of liability. The current factual allegations in the FAC are too conclusory and therefore

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cannot meet the standard articulated in Twombly and Iqbal. As noted above, the substance of the

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allegations are as follows:
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[SSS] was unfit for the job that it contracted for.

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For the Northern District of California

United States District Court

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110.

Plaintiff believes that Lucasfilm knew, or should have known
that [SSS] was unfit and/or incompetent, and that this unfitness
and/or incompetence created particular risk to Plaintiff.

111.

Plaintiff alleges that it was [SSS’s] incompetence and unfitness
that harmed Plaintiff by causing [him] to lose his employment,
and that Lucasfilm’s, Letterman’s, and Skywalker’s negligence
in hiring, supervising and retaining [SSS] was a substantial
factor in causing Plaintiff’s harm.

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FAC ¶¶ 109-11. Nowhere in the complaint does Mr. Kasperzyk clearly articulate why SSS was

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unfit for the job or why Lucasfilm knew or should have known that SSS was unfit for the job. Nor

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does Mr. Kasperzyk provide any factual allegations in the complaint to support the assertion that

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Lucasfilm retained control over working conditions at Letterman Digital Arts Center and that

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Lucasfilm’s exercise of retained control “affirmatively contributed” to his injury.7

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At the hearing, Mr. Kasperzyk identified for the first time specific facts to support his claim

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for negligence in hiring, retention, or supervision. But these facts are not pled anywhere in the

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operative pleading and therefore dismissal is appropriate. In any event, the Court rejects Mr.

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The Court acknowledges Lucasfilm’s suggestion that Hooker is not applicable because §
414 of the Restatement applies only to physical injuries, and here Mr. Kasperzyk has suffered only
nonphysical injuries. See Reply at 8. The problem for Lucasfilm is that the entire line of Privette
cases – on which it itself relies – focuses on Restatement sections that reference physical injury or
harm. In other words, if the Court were accept Lucasfilm’s argument, Lucasfilm would have no
Privette argument to make at all. Because Lucasfilm fails to explain why Privette should apply to
bar Mr. Kasperzyk’s claim but Hooker would not, the Court does not further entertain the argument.

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Kasperzyk’s suggestion that Lucasfilm could be held liable simply because it knew, at the time that

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it hired SSS, that SSS was hiring former Advanced-Tech employees, some of whom had been

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charged with religious discrimination against a third party. Lucasfilm could not reasonably expect

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that SSS would discriminate on the basis of disability simply because a third party had sued for

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religious discrimination, not disability discrimination, especially when, at the time of its hiring and

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retention of SSS, it appears that there was simply a charge of discrimination without any

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adjudication on the merits against SSS.

cannot say at this point that amendment would be futile, and therefore the Court dismisses the claim

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for negligence in hiring, retention, or supervision against Lucasfilm with leave to amend that claim

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For the Northern District of California

While the Court has serious doubts whether Mr. Kasperzyk can state such a claim, the Court

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United States District Court

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(i.e., to address the two deficiencies discussed above). The amended complaint shall be filed within

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thirty (30) days of this order. Within thirty (30) days thereafter, Lucasfilm may file a motion to

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dismiss the amended complaint. Lucasfilm is not barred from reasserting in its motion the federal

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enclave argument; however, no further briefing on that issue should be included in the motion (i.e.,

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that issue has already been fully briefed by the parties).

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If no amended complaint is filed within the above timeframe, then Lucasfilm shall be
dismissed from this case with prejudice.

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III.

CONCLUSION

For the foregoing reasons, the Court grants the motion to consolidate and further grants

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motion to dismiss but gives Mr. Kasperzyk leave to amend as provided above. The Court reserves

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the right to rule on the federal enclave issues, if necessary.

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This order disposes of Docket Nos. 9 and 23.

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IT IS SO ORDERED.

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Dated: November 15, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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