Case Number: BC659100 Hearing Date: December 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION GRANTED

I. INTRODUCTION

On April 26, 2017, Plaintiff Richard Egoyan (“Plaintiff”), a minor, by and through his Guardian Ad Litem, Ruben Egoyan, filed this action against Defendants Cabrini Villas Homeowners Association (“Cabrini”), Gennadi Garbian (“Gennadi”), Gabroch Garibian, Araksiya Azaryan, and Gagik Rostomyan (“Rostomyan”) for negligence, battery, and intentional infliction of emotional distress arising out of an incident where Genadi poured hot water on Plaintiff’s chest. Cabrini moves for summary judgment.

II. FACTUAL BACKGROUND

Plaintiff Richard Egoyan lived at Cabrini Villas where Cabrini was the homeowners association. (Undisputed Material Fact “UMF” No. 1.) On July 30, 2015, 11-year-old Plaintiff Richard and 12-year-old Gennadi Garbian were scheduled for a group tennis lesson with Rostomyan, who also lived at Cabrini Villas. (UMF Nos. 4-6.) Plaintiff and Gennadi were given permission to leave the lesson and to go use the pool because it was a particularly warm day. (UMF No. 7.) Plaintiff had used the pool after tennis lessons several times before and used it 4-5 times per week during the summer. (UMF No. 9.) Cabrini allows guests in the pool area. (UMF No. 10.) Plaintiff asked Gennadi for a cup of cold water. Gennadi retrieved a cup of cold water and a cup of hot water from a water dispenser in the kitchen. (UMF No. 13.) Gennadi then intentionally threw the hot water on Plaintiff’s chest. (UMF No. 17.)

III. LEGAL STANDARDS

In reviewing a motion 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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

The elements of negligence are duty, breach, causation and damages. (County of Santa Clara v. Atl. Richfield Co. (2006) 137 Cal.App.4th 292, 318.) As framed by the Complaint, Plaintiff alleged that Cabrini owed Plaintiff a duty to ensure that Plaintiff would be safe and not suffer personal injuries and/or emotional distress. (Complaint, ¶ 26.) Plaintiff contends Cabrini breached its duty by failing to establish and/or enforce rules regarding minimum age requirements to use the pool area without supervision, failing to ensure that non-residents did not have access to recreational facilities, failing to secure the office facility which allowed access of minor children to hot scalding water, negligently supervising, hiring, and trianing security personnel, and negligently supervising, hiring, and training its tennis court personnel, including Rostomyan. (Complaint, ¶ 27.) Plaintiff also alleged Rostomyan had a duty to ensure the safety of the children placed in his care and breached his duty by releasing Gennadi to play in the pool area without his supervision. (Complaint, ¶¶ 28-30.)

Cabrini argues it had no duty to prevent Gennadi from spontaneously throwing hot water on his friend. Cabrini contends that this attack was an intentional battery by Gennadi, as evidenced by the surveillance video, photos, and Plaintiff’s deposition testimony. (Pltff’s Depo., 44:2-45:16, 50:19-51:23, 73:1-3, 76:11-77:3; Exhs. 19, 20.) Cabrini argues that in order to impose a duty on Cabrini to prevent the wrongful act of a third-party, there must be actual knowledge of the danger posed by the third party. Cabrini contends that Plaintiff’s Complaint fails to allege Cabrini had actual knowledge that Gennadi would harm Richard. Cabrini states there were no prior hot water attacks and argues it had no actual knowledge that Gennadi would attack Richard.

“Absent a legal duty, any injury is an injury without actionable wrong.” (Romero v. Superior Court of San Diego County (2001) 89 Cal.App.4th 1068, 1078.) “Duty, being a question of law, is particularly amenable to resolution by summary judgment.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.) “While it is the province of the jury, as trier of fact, to determine whether an unreasonable risk of harm was foreseeable under the particular facts of a given case, the trial court must still decide as a matter of law whether there was a duty in the first place, even if that determination includes a consideration of foreseeability.” (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 214.) “If there is no duty, there can be no liability, no matter how easily one may have been able to prevent injury to another.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 150.)

California courts have routinely held that even where a special relationship is formed, like that of a child and a caretaker, a defendant has no duty to protect a plaintiff from unforeseeable third-party criminal conduct. (See, e.g., J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 398 [“Because there was no evidence showing [defendant] had actual knowledge of E.Y’s assaultive tendencies or that he posed any risk of harm, his conduct was not foreseeable and [defendant] owed no duty to protect against the attack”]; Wiener v. Southcaost Childcare Centers, Inc. (2004) 32 Cal.4th 1138 [no duty where criminal act was unforeseeable]; Romero, supra, 89 Cal.App.4th at pp. 1084 [no duty where undisputed evidence showed defendants had no knowledge of minor boy’s propensity to sexually assault females].) For example, in Margaret W., supra, the defendant assumed a special relationship with the minor plaintiff by inviting plaintiff to her home for a sleepover with defendant’s daughter. (Margaret W., supra, 139 Cal.App.4th at pp. 152-153.) The defendant left the girls unsupervised and plaintiff voluntarily left the house with boys who later assaulted her. (Id. at pp. 145-148.) The court of appeal affirmed a grant of summary judgment in favor of the defendant on plaintiff’s negligence claims and emphasized that “[i]n order for there to be a duty to prevent third party criminal conduct, that conduct must be foreseeable” and “foreseeability must be measured by what the defendant actually knew.” (Id. at pp. 152, 156.)

Cabrini argues that the theories alleged in the Complaint do not support the imposition of a duty on it to prevent this intentional tort by Gennadi. Cabrini argues it also cannot be vicariously liable for the acts or omissions of Rostomyan because Rostomyan was not an employee. Rostomyan was an independent contractor who rented the use of the tennis courts and an empty office for a fee, and then found his own clients who paid him directly for lessons that Rostomyan alone controlled.

It is undisputed that Genandi threw the hot water on Richard suddenly, without provocation, and without warning. (UMF No. 17.) It is also undisputed that there were no prior hot water attacks at Cabrini. (UMF No. 15.) Further, at his deposition, Plaintiff testified he did not know why Gennadi threw the water on him. (Pltff’s Depo., 44:21-45:2.) The Court finds Cabrini has met its initial burden of showing Plaintiff cannot prove the duty element of negligence absent a showing Cabrini had actual knowledge of Gennadi’s propensity or intention to harm Richard. The burden shifts to Plaintiff to show a triable issue of fact exists.

Plaintiff argues that it is a triable issue of fact whether Rostomyan was an employee or independent contractor. Plaintiff argues Cabrini advertised a “tennis pro” as part of its amenities and that Cabrini retained control over the lesson rates charged, the court location and times for lessons, and tennis rules, but failed to require Rostomyan to obtain liability insurance or liability waivers from his tennis students. (Plaintiff’s Additional Facts “AF” Nos. 20-30.) Further, Rostomyan operated out of the “Cabrini Village Tennis Club” and posted advertisements on Cabrini property with his photo below the name “Cabrini Villas Tennis Academy.” (AF Nos. 20, 21.)

Plaintiff argues that at the time of the incident, both Richard and Gennadi were attending a group tennis lesson under Rostomyan’s supervision and that the rules and regulations prohibit unsupervised minors under the age of 14 from utilizing an adjacent pool complex. (AF Nos. 32, 35, 38, 39.) Plaintiff argues Cabrini had prior knowledge of “problems” with unsupervised minors utilizing the pool complex and that Cabrini instructed both security personnel and Rostomyan to exclude unsupervised minors from the pool complex. (AF Nos. 38, 39.)

Plaintiff argues the special relationship between Rostomyan and the children created a heightened duty of care to prevent harm, and the negligent supervision of the two children were contributing causes of Plaintiff’s injuries. Plaintiff contends that the level of foreseeability required to impose a duty here is broad and does not require evidence of prior similar incidents. Plaintiff argues Cabrini had a duty to take precautions that were already defined and in place, but disregarded by security personnel and Rostomyan.

In Reply, Cabrini argues Plaintiff fails to show a triable issue of material fact exists as to the central issue—whether Cabrini had actual knowledge of Gennadi’s propensities such that this third-party wrongful act was foreseeable.

Having reviewed the moving, opposition, and reply papers, the Court finds Plaintiff has failed to meet his burden of showing at triable issue of fact exists as to Cabrini’s duty.

In order to impose a duty on Cabrini to prevent a third-party from harming plaintiff, the foreseeability of the wrongful act by the third party must be measured by Cabrini’s actual knowledge. Viewing the evidence in the light most favorable to Plaintiff, Plaintiff has only presented evidence that Cabrini knew there were “problems” in the pool area and advised its staff that minors should not be unsupervised in the pool area. However, there is no evidence that these “problems” included minors accessing and pouring hot water on each other, or other such intentional acts. While Plaintiff urges the Court to “evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced [so] that liability may appropriately be imposed on the negligent party,” Plaintiff neglects the case law cited by Cabrini. A category of negligent conduct that might be foreseeable if minors are left unsupervised at the pool might be drowning or injury caused by minors playing in the pool area. It is not foreseeable, absent actual knowledge of his propensities, that Gennadi would splash his friend with a cup filled with hot water from a water dispenser – a criminal battery – if left unsupervised at the pool.

Generally, one has “no duty to act to protect others from the conduct of third parties.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) “No case has held that a defendant owed a duty to take steps to prevent or respond to third party crime on the basis of constructive knowledge or information the defendant should have known. We are not aware of any case involving liability for third party criminal conduct that has held that a special relationship creates a duty to investigate or that has charged a defendant with making forecasts based on the information such an investigation might have revealed.” (Margaret W., supra, 139 Cal.App.4th at p. 156.) The imposition of such a duty of care requires evidence of facts form which a trier of fact could reasonably find that the defendant adult had prior actual knowledge of the perpetrator’s propensities. (Id. at p. 153.)

Here, there is no evidence that Cabrini or Rostomyan had any prior knowledge of Gennadi’s propensity to intentionally cause harm to Plaintiff or anyone else. Even Plaintiff testified he did not know why his friend had poured hot water on him. Under the circumstances and for the same reason, Rostomyan cannot be liable for failing to supervise Gennadi or to prevent the attack on Plaintiff because he could not have known that Gennadi had dangerous propensities. For these reasons, Rostomyan’s employment status is of no relevance.

Therefore, Plaintiff has failed to meet his burden of showing a triable issue of material fact exists.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.