BLANCA HERNANDEZ v. SPIRIT AIRLINES INC (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiffs and appellants Blanca Hernandez (Blanca) and Maria Hernandez (Maria) ¹ (collectively, plaintiffs) appeal a judgment pursuant to a grant of summary judgment in favor of defendants and respondents Spirit Airlines, Inc. (Spirit) and Hallmark Aviation Services, L.P. (Hallmark).

In this action, plaintiffs sought to hold defendants liable in tort for the actions of a rogue employee who obtained $230 in cash from Blanca in exchange for reticketing Maria after she missed her flight.

No triable issues exist as to plaintiffs' causes of action for negligence, intentional infliction of emotional distress and fraud.   Therefore, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

On December 4, 2007, Maria was scheduled to fly from Los Angeles to Guatemala via Spirit on a 12:25 a.m. flight.   The purpose of Maria's trip was to see her dying mother.   Maria missed the flight due to her failure to check in at least one hour prior to her scheduled departure.   Maria, accompanied by her sister Blanca, approached Cristian Mora (Mora) at the Spirit ticket counter in an attempt to rebook Maria's passage.²

Mora allegedly stated the next flight was full but that if Blanca paid him $230 in cash he would be able to give Maria a boarding pass.   Blanca testified that Mora wanted her to go outside the airport to give him the $230 because he “could be watched” inside the airport.   Blanca refused to go outside.   Mora then placed Maria's suitcase on the scale and asked Blanca to give him the money next to the suitcase, under the counter.   Blanca complied.   At the time of the incident, neither Blanca nor Maria believed the additional charge was legitimate.   However, they did not ask to speak to a supervisor.   Blanca paid Mora the $230 and he gave Maria a valid boarding pass.   Maria successfully boarded the next Spirit flight to Guatemala.

The next morning, Blanca returned to the airport and spoke to a supervisor about the incident.   Hallmark immediately suspended Mora and cooperated with the police investigation into Mora's alleged misconduct.   On December 8, 2007, Hallmark terminated Mora's employment.   On December 19, 2007, Hallmark issued an apology letter to Blanca, along with a check reimbursing her for the $230 she had given Mora.³

2. Proceedings.

a. Original pleadings.

On May 9, 2008, the plaintiffs filed suit against Spirit and Hallmark, alleging two causes of action, general negligence and intentional infliction of emotional distress.

The complaint's sole theory of negligence was based on allegations of negligent hiring, training and supervision, to wit:  Spirit “negligently hired an unqualified poorly trained agency to handle its ticketing operations at LAX, and then failed to properly train, monitor, and supervise its employees and agents in the proper operational techniques for operating ticketing operations, and said failure directly and proximately led to the opportunity for an unscrupulous employee to extort additional monies from plaintiffs for airline fare.”

The cause of action for intentional infliction of emotional distress asserted:  “Defendant MORA deliberately and falsely informed plaintiffs that they would not be allowed to travel on Spirit Airlines unless they paid him an additional sum of money.   Said statement was false and designed to extort money from plaintiffs, and was reasonably foreseeable that it would cause severe and extreme emotional distress, due to the fact that the airline passage was to see plaintiffs' dying mother in El Salvador, of which defendants knew.  [¶] As a result of their total lack of oversight of said defendant by the remaining defendants ․ it was reasonably foreseeable that said situation could and would occur, and, for that reason, codefendants are vicariously liable for the acts of their agent and employee, [CRISTIAN] MORA.”

Sprit and Hallmark answered with a general denial and asserted numerous affirmative defenses, including unclean hands.

b. First motion for summary judgment.

Spirit and Hallmark thereafter brought a motion for summary judgment and/or summary adjudication, contending plaintiffs were not entitled to recover for emotional distress under either of their theories because they lacked sufficient evidence of injury.   After missing the original flight, Maria was able to board the next flight to Guatemala, and Spirit gave her a voucher for a free round-trip ticket.   Also, Blanca was promptly reimbursed the $230 by Hallmark in an apology letter.

The moving papers further argued plaintiffs lacked evidence to support their allegation that Hallmark and Spirit negligently hired, trained and supervised Mora. To the contrary, the evidence showed Hallmark exercised due care by conducting a thorough background check prior to hiring Mora, and providing significant customer service and security training.   Further, there were no disciplinary issues with Mora prior to this incident, and Hallmark had no reason to know or suspect Mora might present a risk of harm to third persons.

Further, plaintiffs could not assert a claim for emotional distress resulting from mere economic loss.   In addition, the plaintiffs did not seek medical treatment, advice or medication related to emotional distress, and objectively, Mora's conduct could not reasonably have led plaintiffs to suffer the type of severe emotional distress needed to support a claim for damages.

With respect to the intentional infliction claim, defendants contended Mora's conduct was not extreme or outrageous as a matter of law.

Further, there was no basis for the imposition of punitive damages -defendants' actions following the incident could not be considered as ratification of Mora's conduct, but rather as repudiation thereof.

c. Motion for leave to file amended complaint to add fraud claim.

Following the filing of the defense motion for summary judgment, plaintiffs filed a motion for leave to file a first amended complaint (Code Civ. Proc., § 473), on the ground the original complaint inadvertently omitted a cause of action for fraud.   Plaintiffs alleged “MORA, the ostensible agent for the other defendants, told plaintiffs ․ they could not fly on Spirit Airlines unless they paid him an extra charge of $230 to do so.  [¶] The said charge was not applicable, and was made for the sole purpose of extorting money from the plaintiffs, and each of them.”   Further, “[d]efendant made the representations with the intent to defraud” and “[p]laintiff acted in justifiable reliance upon the truth of the representations.”

d. Grant of summary adjudication as to the emotional distress claims.

On June 8, 2009, the trial court granted summary adjudication in favor of Spirit and Hallmark on the causes of action for general negligence and intentional infliction.   The trial court ruled “defendants hired co-defendant [Mora] after background check on Mora indicated no prior felonies and/or misdemeanors.   This Court further finds defendants properly trained and supervised Mora while he was employed by defendants.   Upon the shifting of the burden, this Court finds plaintiffs failed to present any competent admissible evidence that defendants knew Mora was unfit for employment but hired him anyway.   Further, the evidence that Mora missed the October 2007 computer training session is insufficient to raise a triable issue of material fact that defendants failed to train Mora. Finally, this Court finds plaintiffs failed to present any competent admissible evidence that defendants hired, trained and supervised Mora with the intent to cause severe emotional distress to plaintiffs.”

e. The second motion for summary judgment.

On July 17, 2009, Spirit and Hallmark filed a motion for summary judgment on the remaining fraud claim, which claim was added during the pendency of the original motion for summary judgment.   Defendants contended the undisputed facts, based on plaintiffs' own deposition testimony, established plaintiffs could not prevail on the fraud claim because there was no actual or justifiable reliance upon the allegedly false statements made by Mora. Defendants asserted both plaintiffs were always aware that the fee imposed by Mora was not legitimate and was fraudulent.   Blanca testified Mora wanted her to go outside the airport to give him the $230 because he “could be watched” inside the airport.   Without reliance, there is no causation.   As a result, the alleged misrepresentations could not have caused plaintiffs' damages and their fraud claim must fail as a matter of law.

f. Trial court's ruling.

On March 16, 2010, the trial court granted the defense motion for summary judgment on the fraud claim.   It stated, “plaintiffs have failed to meet their burden to produce competent admissible evidence creating a triable issue of material fact that they were defrauded by defendants.   Specifically, both plaintiffs testified at their deposition that they knew the demand to pay the extra $230 was ‘not legitimate’ at the time it was made․  Plaintiffs cannot now contradict their own deposition admission in an effort to raise a triable issue of material fact to oppose the motion.”

On January 15, 2010, Blanca and Maria filed a premature but timely notice of appeal from the judgment.

CONTENTIONS

Plaintiffs contend the grant of summary judgment was error because triable issues exist with respect to the causes of action for negligence, intentional infliction of emotional distress and fraud.

DISCUSSION

1. Standard of appellate review.

Summary judgment “motions are to expedite litigation and eliminate needless trials.  [Citation.]  They are granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’  [Citations.]”  (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)

A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action.  (Code Civ. Proc, § 437c, subd. (p)(2);  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)   Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849;  Code Civ. Proc., § 437c, subd. (p)(2).)

We review the trial court's ruling on a motion for summary judgment under the independent review standard.  (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)

2. No triable issue as to negligence.

As a preliminary matter, although plaintiffs purport to seek recovery for negligent infliction of emotional distress, the negligent causing of emotional distress is not an independent tort but the tort of negligence.  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

On appeal, plaintiffs contend a triable issue exists as to negligence in that Mora's actions violated company policy and an employee's violations of policies and procedures constitutes evidence of negligence.⁴

On summary judgment, the issues are “framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.”  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.)   Here, the complaint's sole theory of negligence was based on allegations of negligent hiring, training and supervision, to wit:  Spirit “negligently hired an unqualified poorly trained agency to handle its ticketing operations at LAX, and then failed to properly train, monitor, and supervise its employees and agents in the proper operational techniques for operating ticketing operations, and said failure directly and proximately led to the opportunity for an unscrupulous employee to extort additional monies from plaintiffs for airline fare.”   However, the opening brief does not challenge the trial court's ruling in favor of respondents on the issue of negligent hiring, training and supervision.   Therefore, plaintiffs are deemed to have abandoned that theory on appeal.

At this juncture, plaintiffs contend a triable issue exists as to negligence in that Mora's actions violated company policy and an employee's violations of policies and procedures constitutes evidence of negligence.   However, the complaint did not plead negligence against Spirit based on vicarious liability for Mora's violation of company policy.   Therefore, defendants were not required to negate that theory in moving for summary judgment.

For these reasons, we reject plaintiffs' contention there exists a triable issue of material fact with respect to negligence.

3. No triable issue as to intentional infliction claim.

In “evaluating whether the defendant's conduct was outrageous, it is ‘not ․ enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.   Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’  (Rest.2d Torts, § 46, com. d, p. 73.)”  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)   Whether conduct is sufficiently extreme and outrageous so as to be actionable may be determined as a matter of law.  (Id. at p. 494.)

Here, Mora extracted $230 from Blanca so that her sister, Maria, could travel on the next Spirit flight to Guatemala to visit their dying mother.   Although Blanca and Maria immediately recognized the $230 charge was illegitimate, they did not request to speak to a supervisor.   Instead, the money changed hands, Mora gave Maria a valid boarding pass, and Maria successfully boarded the desired flight.   The following day, after Maria's flight had departed, Blanca returned to the airport to speak to Mora's supervisor.   In other words, Blanca knowingly paid a $230 bribe to Mora to ensure Maria could depart on the next flight.   After the flight departed with Maria on board, Blanca sought and obtained a refund of the bribe.

On this record, Mora's taking $230 from Blanca in exchange for reticketing Maria on the next flight to Guatemala does not rise to the level of conduct “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’  “ (Cochran v. Cochran, supra, 65 Cal.App.4th at p. 496.)

4. No triable issue as to fraud claim;  plaintiffs did not believe the $230 charge was legitimate and therefore they cannot show actual reliance on Mora's misrepresentations.

An essential element of a cause of action for fraud is that plaintiff actually relied upon the truth of the alleged misrepresentations.  (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1256.)

In the instant case, Blanca's deposition testimony establishes she knew Mora's demand for $230 was illegitimate.   Blanca's deposition testimony was as follows:

“Q Did you believe that the $230 charge was a legitimate charge?

“A Not legitimate or legal.

“Q Okay. Why did you give him the $230?

“A Because he said that if I didn't give it to him, my sister was not going to be traveling.”

Similarly, Maria's deposition testimony was as follows:

“Q So you-you believe that him charging you money at that moment was a fraud? ․ [¶] ․

“[A] Yes, it was a fraud.   Of course.   Of course it was.   What that man was doing was a fraud.”

On this record, there was no actual reliance by plaintiffs on the truth of Mora's representations.   Accordingly, the trial court properly determined plaintiffs were incapable of prevailing on their fraud claim.

CONCLUSION

Plaintiffs have no cause of action arising out of their payment of a bribe to a rogue airline employee for reticketing a passenger after a missed flight.   No triable issues exist as to plaintiffs' causes of action for negligence, intentional infliction of emotional distress or fraud.

DISPOSITION

The judgment is affirmed.   Spirit and Hallmark shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. We refer to the individual plaintiffs by their first names for purposes of clarity and not out of disrespect..  FN1. We refer to the individual plaintiffs by their first names for purposes of clarity and not out of disrespect.

FN2. Spirit contracted with Hallmark to provide personnel to staff its airport ticket counters.   Hallmark hired Mora to work as a ticket agent at LAX..  FN2. Spirit contracted with Hallmark to provide personnel to staff its airport ticket counters.   Hallmark hired Mora to work as a ticket agent at LAX.

FN3. Mora was charged with petty theft and entered a plea of no contest.   He is not a party to this appeal..  FN3. Mora was charged with petty theft and entered a plea of no contest.   He is not a party to this appeal.

FN4. To the extent the appellants' opening brief relies on incorporation by reference, the arguments are disregarded.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.).  FN4. To the extent the appellants' opening brief relies on incorporation by reference, the arguments are disregarded.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.)

KITCHING, J. ALDRICH, J.