Case Number: BC505068 Hearing Date: May 09, 2016 Dept: 98

ELIZABETH LUTZ,
Plaintiff,
vs.

PATRICIA CORDELL, et al.,

Defendants.

CASE NO: BC505068

[TENTATIVE] ORDER RE: DEFENDANT PATRICIA HANKEY’S MOTION FOR SUMMARY JUDGMENT

Dept. 98
1:30 p.m.
May 9, 2016

I. BACKGROUND

On April 5, 2013, Plaintiff Elizabeth Lutz (“Plaintiff”) filed this action against Defendants Patricia Hankey (erroneously sued as Patricia Cordell) (“Hankey”) and Daniel Cordell (“Cordell”). This action arises out of an alleged attack on Plaintiff by Cordell. Hankey now moves for summary judgment against Plaintiff’s claims against her.

II. LEGAL STANDARD

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. “The motion for summary judgment shall be 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. . . .” Cal. Code of Civ. Proc. § 437c(c). Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

III. DISCUSSION

Plaintiff was employed at Independence Center, a residential treatment facility for young adults with special needs. Cordell has been diagnosed with autism, schizophrenia, depression, and bipolar disorder. Plaintiff alleges that on April 8, 2011, she left the facility for a brief period and when she attempted to re-enter, Cordell attacked her with a knife. Plaintiff contends that Cordell told Hankey that he was “on his way to attack Plaintiff” and that Hankey failed to notify anyone at Independence Center of her son’s statement. Plaintiff also alleges that Cordell had a long history of violence, of which Hankey was aware. Plaintiff’s operative First Amended Complaint alleges causes of action for negligence and negligent infliction of emotional distress against Hankey.

Hankey is not the legal guardian or conservator of Cordell. Nor was she his legal guardian or conservator at the time of the incident. When he was 27 years old, Cordell was referred by his therapist to Independence Center for possible admission. Prior to admission, Cordell underwent psychological tests to determine the level of assistance he required and the results of those tests, along with Cordell’s psychological history, were provided to the Director of Independence Center. Between January 17, 2011 and April 8, 2011, Hankey was living in San Francisco and visited Cordell on a monthly basis. She called Independence Center almost nightly to speak with Cordell’s main counselor or other staff and was unaware of any complaints of violence or aggressive behavior from Cordell. On April 8, 2011, Hankey received a phone call from Cordell. Cordell informed Hankey that he was about to “off” himself. Cordell did not mention an intention to harm anyone at Independence Center. When Cordell disconnected the call, Hankey immediately called him back. When Cordell did not answer, Hankey called the Independence Center office, but no one answered. Hankey called 911 and had to call another number provided to her by the dispatcher, as she was located in San Francisco and could not be directly connected to a Los Angeles dispatcher. Hankey called the number, which she believed to be the local Los Angeles Police Department station. The person she spoke with informed her that a unit would be sent to Cordell’s apartment right away.

Hankey argues that Plaintiff cannot allege a cause of action based on negligence against her because Cordell was an adult residing on his own at the time of the incident and Hankey therefore had no control over him. Hankey further argues that any negligence claim against her fails because Cordell did not state that he intended to harm someone else during their telephone call. Hankey asserts that, even if she owed Plaintiff a duty, Plaintiff cannot show breach of any duty leading to Plaintiff’s injuries because Hankey acted reasonably at all times.

To plead negligence, a plaintiff must plead duty, breach, causation, and damages. County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318. “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for the damage done.” Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434. “Thus, it is fundamental that whenever circumstances are such that one person’s failure to use ordinary care in his conduct would cause a danger of injury to the person or property of another, a duty arises to use ordinary care to avoid that danger.” Megeff v. Doland (1981) 123 Cal.App.3d 251, 256. Before the special parent-child relationship can give rise to a duty of care, it must be shown that the parent had the ability to control the child. Todd v. Dow (1993) 19 Cal.App.4th 253, 259. “The absence of an ability to control is fatal to a claim of legal responsibility.” Id.

The Court finds that Hankey has met her burden to show that there is no triable issue of material fact as to Plaintiff’s negligence and negligent infliction of emotional distress causes of action and that Hankey is entitled to summary judgment as a matter of law. Hankey had no control over her adult son, had no indication that Cordell intended to injure another person, and acted reasonably under the circumstances. Plaintiff has not opposed this Motion and therefore has not rebutted Hankey’s showing.

IV. CONCLUSION

In light of the foregoing, Defendant Patricia Hankey’s Motion for Summary Judgment is GRANTED.

Dated this 9th day of May, 2016

Hon. Holly J. Fujie
Judge of the Superior Court