Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Beverly Spalding Court Homeowners’ Association 

 

RESPONDING PARTY: Plaintiff Wayne J. Saks 

 

BACKGROUND 

This case arises from an assault and battery in the parking garage of a condominium complex located at 277 South Spalding Drive, Beverly Hills, California (the “Property”).  Plaintiff Wayne J. Saks claims he was viciously attacked by Defendant Pascal Landi because Plaintiff parked in a pre-assigned parking space belonging to Landi.  (Undisputed Material Facts (“UMF”) Nos. 22-25.)  Landi is a resident at the Property and also the president of Defendant Beverly Spalding Court Homeowners’ Association (“HOA”) (UMF ¶¶ 4, 7.)  

Plaintiff alleges the HOA “authorized Defendant Landi to act on behalf of the HOA in order to ensure compliance with the rules, policies and regulations of the HOA.”  (Ex. C to RFJN, Second Amended Complaint (“SAC”) ¶ 25.)  Plaintiff further alleges that Landi confronted Plaintiff about the parking spot on the date of the incident “in his capacity as a board member and/or agent” of the HOA. (Id.)  According to Plaintiff, Landi’s communications with him and subsequent assault were a “direct outgrowth of his duties related to the enforcement of the rules of the HOA.”  (Id.) 

On the date of the alleged assault, Plaintiff parked his car in an empty vacant spot next to his parking space.  (UMF No. 14, 16.)  Plaintiff went to his unit to do various chores.  (UMF No. 17.)  He then returned to the parking garage, where he claimed Landi approached him violently and aggressively.  (UMF No. 22.)  Plaintiff testified Landi asked him why he was parked in Landi’s designated parking spot.  (UMF No. 24.)  Plaintiff told Landi to calm down, when Landi allegedly struck him in the face.  (UMF No. 25.)   

Plaintiff produced a video that illustrates the words exchanged between Plaintiff and Landi.  (UMF No. 30.)  Based on the video footage, Landi did not mention that he was acting on behalf of or confronting Plaintiff in his capacity as a board member of the HOA.  (UMF No. 32.)   While Plaintiff claims Landi yelled he was “sick of the fucking lawsuit,” referring to a suit filed by Plaintiff against the HOA and Landi, Saks v. Pink, et al., the video does not support this claim.  (UMF Nos. 33, 36.)  Based on the video footage, Landi did not mention the alleged various disputes between the HOA and Plaintiff.  (Id.)  Rather, the video footage shows Landi simply asked Plaintiff why he had parked in Landi’s designated parking spot and why he was not wearing a face mask during the height of the COVID-19 concerns.  (Id.) 

This hearing is on the HOA’s motion for summary judgment or in the alternative for summary adjudication.  HOA argues that as to Plaintiff’s claims for assault and battery, Plaintiff cannot produce admissible evidence to show the HOA is vicariously liable for the actions of Landi, which stemmed from a private dispute over a parking space and was not related to his duties as an HOA board member.  HOA also argues that as to Plaintiff’s claim for intentional infliction of emotional distress, there are no facts to show the HOA intended to cause Plaintiff emotional distress.  Finally, HOA argues that as to Plaintiff’s claim for negligent infliction of emotional distress, it is not an independent tort, and there are no facts to show that any alleged negligent acts done by the HOA would foreseeably and naturally lead to Plaintiff’s emotional distress.                   

REQUEST FOR JUDICIAL NOTICE     

The HOA seeks judicial notice of the initial complaint, the first amended complaint, and the second amended complaint, all filed in this action.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(d) and 453.     

LEGAL STANDARD     

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67).   

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense.  (Code Civ. Proc. §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  

A moving party may prevail by establishing “the absence of evidence to support the [responding party’s] case.”  (Leslie G. v. Perry & Assoc. (1996) 43 Cal.App.4th 472, 482.)  The defendant must show the plaintiff does not possess needed evidence and also that the plaintiff cannot reasonably obtain the evidence.  (Aguilar v. Atlantic Ritchfield (2001) 25 Cal.4th 826, 854.) 

A moving defendant may rely upon factually devoid discovery responses to shift the burden of proof.  (Union Bank v. Superior Court (1995) 31 Cal.App. 4th 573, 581, 590.)  Thus, in Union Bank, the Court found that the defendant had met its burden of proof for summary judgment, by relying upon plaintiff’s discovery responses, which contained no facts supporting the fraud causes of action at issue in that case.  (Id. at 581, 592-593.)   

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 that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)  The responding party may not simply rely on mere allegations or denials of the pleadings but must set forth specific facts showing that a triable issue of material fact exists with respect to the claim at issue.  (Aguilar, 25 Cal.4th at 844.) 

EVIDENTIARY OBJECTIONS 

The Court overrules Objection Nos. 1-8 to Plaintiff’s additional material facts in support of Plaintiff’s opposition.   

DISCUSSION 

Continuance 

The Court first addresses Plaintiff’s request that the Court continue the hearing on the  motion for summary judgment to allow Plaintiff time to conduct additional discovery.  The Court concludes Plaintiff has not sufficiently identified what additional evidence may exist to refute the issues raised by the pending motion.   

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just… .” (Code Civ. Proc., § 437c, subd. (h).)   

“An opposing party’s declaration in support of a motion to continue the summary judgment hearing should show the following: (1) ‘Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion’; (2) ‘The specific reasons why such evidence cannot be presented at the present time’; (3) ‘An estimate of the time necessary to obtain such evidence’; and (4) ‘The specific steps or procedures the opposing party intends to utilize to obtain such evidence.’” (Johnson v. Alameda Cnty. Med. Ctr. (2012) 205 Cal.App.4th 521, 532, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 10:207.15, p. 10-83.)   

Plaintiff has not submitted any supporting declaration to justify a continuance of the hearing on the pending motion.  There is no declaration attesting to what controverting evidence would exist to oppose the motion, an estimate of time necessary to obtain the evidence, and the specific steps Plaintiff intends to use to obtain the evidence.  Accordingly, the Court denies Plaintiff’s request for a continuance.     

Vicarious Liability-Scope of Employment 

The HOA argues that there is no triable issue as to Plaintiff’s claims for assault, battery, intentional infliction of emotional distress and negligent infliction of emotional distress because the HOA is not vicariously liable for Landi’s conduct.  The Court agrees. 

A principal may be vicariously liable for injury committed by an act of its agent where (1) the principal directly authorizes the act to be committed, (2) the agent commits the act in the scope of their agency and in performing service on behalf of the principal, or (3) the principal ratifies its agent’s conduct after the fact by electing to adopt the agent’s conduct.  (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.)  Here, Plaintiff alleges vicarious liability based on (2) and (3).     

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.  (Patterson v. Domino’s Pizza LLC (2014) 60 Cal.4th 474, 491.)  “To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer’s enterprise.”  (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008.)   

Looking at the matter with a slightly different focus, California courts have also asked whether the tort was, in a general way, foreseeable from the employee’s duties.  Respondeat superior liability should apply only to the types of injuries that “as a practical matter are sure to occur in the conduct of the employer's enterprise.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal. 3d 956, 959.)  The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought. 

Although generally, the determination whether an employee has acted within the scope of employment is a question of fact, it becomes a question of law where the facts are undisputed and no conflicting inferences are possible.  (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.) 

Here, in video footage of the incident, Landi does not mention he is enforcing the rules of the HOA.  (UMF Nos. 32-33.)  Landi simply asked Plaintiff why he was parked in Landi’s designated spot and why he was not wearing a mask, which confirms this was a private dispute between two residents over a parking spot.  Plaintiff states that Landi “shouted at Plaintiff that he was ‘sick of this fucking lawsuit”, but the video footage shows Landi never referred to any lawsuit filed by Plaintiff against the HOA or any other HOA matter.  (UMF No. 33.)   

Analysis in terms of foreseeability leads to the same conclusion.  An intentional tort is foreseeable, for purposes of respondeat superior, only if “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.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal. App. 3d 608, 619.)  The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed.  The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought. 

Here, it is beyond reasonable dispute that employment as an HOA president does not create a foreseeable risk of assault and battery.  The undisputed evidence shows this was a personal dispute, and vicarious liability cannot arise out of a personal dispute.  (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 301 (“[V]icarious liability [has been] deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute.”); Monty v. Orlandi (1959) 169 Cal.App.2d 620, 624 (“If an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable.”).) 

Plaintiff alleges Landi was acutely aware of the circumstances of the growing legal disputes between Plaintiff and the HOA and discussed these circumstances in special HOA meetings and informal conversations with other board members.  (Plaintiff’s Disputed Material Facts (“DMF”) No. 35.)  However, that Landi was aware of Plaintiff’s prior conflicts with the HOA does not translate to a finding that his assault of Plaintiff was an outgrowth of, or incidental to, his role as the president of the HOA.  To rule otherwise would mean the HOA would be vicariously liable for any and every conduct Landi commits against Plaintiff, regardless of the context of the interaction because Landi presumably would know about all these prior lawsuits at the time he engaged in any such acts.  That cannot be the law.     

Vicarious Liability-Ratification 

   Plaintiff also alleges the HOA is vicariously liable because it ratified Landi’s conduct by failing to conduct an investigation and failing to remove him as its president.  The Court disagrees. 

As an alternative to respondeat superior, an employee may be liable for an employee’s act where the employer subsequently ratifies the originally unauthorized act.  (Samantha B. v. Aurora Vista Del Mar, LLC, 77 Cal. App. 5th 85, 109.)  “The failure to investigate or respond to charges that an employee has committed an intentional tort or the failure to discharge the employee may be evidence of ratification.”  (Id.)  Generally, ratification is a question of fact.  (Id.)   

Here, Plaintiff alleges the HOA had sufficient notice of the attack to prompt a formal investigation.  While the Court agrees there is a triable issue that the HOA had notice of the attack, Plaintiff has not presented any triable issue that the HOA was obligated to investigate a personal dispute between Plaintiff and Landi.  (UMF No. 40.)  If it were otherwise, the HOA would be required to investigate any dispute between its members.   

None of Plaintiff’s cited authorities support a finding that the HOA is obligated to investigate personal disputes.  Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930 involved an HOA’s failure to investigate plumbing issues.  Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2007) 168 Cal.App.4th 1111 involved an HOA’s failure to trim palm trees in violation of the CC&Rs.  Frances T. v. Village Green Owners’ Assn. (1986) 42 Cal.3d 490 involved an HOA’s failure to respond to the need for additional lighting and ordering the plaintiff to disconnect her additional lights which the plaintiff alleged resulted in her being attacked inside her condominium unit.  None of these cases hold that an HOA is required to investigate a purely personal dispute. 

Plaintiff also argues that by failing to remove Landi as president, the HOA ratified Landi’s conduct.  HOA fails to address this argument in its reply.  While courts hold that a failure to discharge can constitute a ratification, the conduct must be connected to the employment.  Otherwise, employers would be vicariously liable for every personal transgression of their employees by simply failing to discipline or discharge them.  Here, the evidence is undisputed that this was a purely personal dispute, unrelated to Landi’s role as president of the HOA.       

Accordingly, because there is no triable issue on vicarious liability, the Court grants the HOA’s motion for summary judgment.   

CONCLUSION    

For the foregoing reasons, the Court GRANTS the HOA’s motion for summary judgment.    

 

IT IS SO ORDERED. 

 

DATED: August 30, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court