Judge: Lee S. Arian, Case: 20STCV49751, Date: 2024-06-14 Tentative Ruling
Case Number: 20STCV49751 Hearing Date: June 14, 2024 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION FOR SUMMARY JUDGMENT
Hearing Date: 6/14/24
CASE NO./NAME: 20STCV49751 DAVID BRACKNEY,
AN INDIVIDUAL vs. JAKE PAUL, et al.
Moving Parties: Defendants Jake Paul and The Performante
Homes Trust
Responding Party: Plaintiff
Notice: Sufficient
Ruling: MOTION FOR SUMMARY JUDGMENT IS GRANTED
Background
On
December 30, 2020, Plaintiff filed the present case alleging that on November
28, 2020, Jake Paul held a party to celebrate his professional boxing match at
the home owned by the Performante Homes Trust, where Paul resided along with
several other individuals, including Co-Defendant Demaurae Nichols. Plaintiff
alleged that he was attacked by Nichols and an unnamed assailant around 5 a.m.,
when most people have already left the party. In the complaint, Plaintiff alleges
two causes of action against Defendants Jake Paul and the Performante Homes
Trust (collectively, “Defendants”): his fourth cause of action for negligence
and his fifth cause of action for false imprisonment. Defendants now move the
Court for summary judgment on these two causes of action. Defendants filed two
separate motions for summary judgment; because those motions contain virtually
identical arguments, evidence, and statements of facts, the
Court herein addresses them together.
Preliminary Matters
"[A] precondition to the taking of
judicial notice in either its mandatory or permissive form – any matter to be
judicially noticed must be relevant to the material issue." (People ex
rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2 (citing
Mangini v. RJ. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063,
overruled by In re Tobacco Cases II (2007) 41 Cal.4th 1257 on other
grounds).) The Court does not find the Order Granting Jake Paul's Motion for
Summary Judgment or, Alternatively, Motion for Summary Adjudication in the
Gabriel Dos Santos v. Paul et al. (Case No. 20STCV47790) relevant, and
therefore denies Defendants’ request for judicial notice.
The Court will not consider evidence
submitted in Defendants’ reply.
As to Plaintiff’s Evidentiary Objections to
the Declaration of Torray Scales, Nos. 1, 3, 5, 6, 7 are overruled. The parties
did not make any other objections to evidence that was material to the Court's
ruling on the Motion for Summary Judgment. (CCP § 437c(q).)
Legal
Standards
Summary Judgment
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.)
“[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 Civ. Proc., § 437c, subd.
(p)(2).) If the moving party fails to carry its burden,
the inquiry is over, and the motion must be denied. (See Id.; see also Consumer
Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Even if the moving party does
carry its burden, the non-moving party will still defeat the motion by
presenting evidence of a triable issue of material fact. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)
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 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.)
The
court must “liberally construe the evidence in support of the party opposing
summary judgment and resolve all doubts concerning the evidence in favor of
that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp.
844-45.) “On a summary judgment motion, the court must therefore consider what
inferences favoring the opposing party a factfinder could reasonably draw from
the evidence. While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are
indisputable may the court decide the issues as a matter of law. If the evidence is in conflict,
the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co.
(1999) 75 Cal.App.4th 832, 839.) Further,
“the trial court may not weigh
the evidence in the manner of a factfinder to determine whose version is more
likely true. [Citation.] Nor may the trial court grant
summary judgment based on
the court’s evaluation of credibility. [Citation.]”
(Id.
at p. 840; see also Weiss v. People ex rel. Department of Transportation
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
Liability
for Third Party Conduct
When
analyzing duty in the context of third-party acts, courts distinguish between
"misfeasance" and "nonfeasance." (Lugtu v. California
Highway Patrol (2001) 26 Cal.4th 703, 716.) "Misfeasance exists when
the defendant is responsible for making the plaintiffs position worse, i.e.,
defendant has created a risk. Conversely, nonfeasance is found when the
defendant has failed to aid plaintiff through beneficial intervention." (Weirum
v. RKO General, Inc. (1975) 15 Cal.3d 40, 49.)
A legal duty may arise from affirmative
acts "where the defendant, through his or her own action (misfeasance) has
made the plaintiffs position worse and has created a foreseeable risk of harm
from the third person. In such cases the question of duty is governed by the
standards of ordinary care." (Pamela L. v. Farmer (1980) 112
Cal.App.3d 206, 209; see Lugtu v. California Highway Patrol, supra,
26 Cal.4th at p. 716; Weirum, supra, 15 Cal.3d at p. 49.)
By contrast, nonfeasance generally
does not give rise to a legal duty. The underlying premise is that "a
person should not be liable for `nonfeasance' in failing to act as a `good
Samaritan.'" (Pamela L. v. Farmer, supra, 112 Cal.App.3d at
p. 209.) In other words, "one `who has not created a peril is not liable
in tort merely for failure to take affirmative action to assist or protect
another' from the acts of a third party." (Garcia, supra,
164 Cal.App.4th at 1453, fn. 3, quoting Williams v. State of California (1983)
34 Cal.3d 18, 23.) Thus, absent misfeasance, "as a general matter, there
is no duty to act to protect others from the conduct of third parties." (Delgado
v. Trax Bar Grill (2005) 36 Cal.4th 224, 235.)
Even in the case of nonfeasance, there
are "recognized exceptions to the general no-duty-to-protect rule,"
one of which is the special relationship doctrine. (Delgado, supra, 36
Cal.4th at p. 235; see Weirum, supra, 15 Cal.3d at 49.) "A
defendant may owe an affirmative duty to protect another from the conduct of
third parties if he or she has a `special relationship' with the other
person." (Delgado, at p. 235.)
Where there is a legal basis for
imposing a duty — as in cases of misfeasance or when a special relationship
exists — the court considers the foreseeability of risk from the third party
conduct. (Melton v. Boustred, (2010) 183 Cal.App.4th 521, 532.) Generally,
"a duty to take affirmative action to control the wrongful acts of a third
party will be imposed only where such conduct can be reasonably
anticipated." (Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, 676; see Wiener, supra, 32 Cal.4th at p.
1146; Rest.2d Torts, § 314A, com. e, p. 120.)
"In each case, however, the
existence and scope of a property owner's duty to protect against third party
crime is a question of law for the court to resolve." (Castaneda,
supra, 41 Cal.4th at p. 1213.)
Misfeasance
“Liability for misfeasance is based on the general duty
of ordinary care to prevent others from being injured by one’s conduct.” (Seo v. All-Makes
Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) The misfeasance
theory applies to claims of liability when the defendant is responsible
for making the plaintiff’s position worse, i.e., defendant has created a
risk. (See id. at 1202.) Nonfeasance applies when the
defendant has failed to aid plaintiff through beneficial intervention and there
is a special relationship that creates a duty to act. (See id.)
Special Relationship
“[A] person who has not created a peril generally has
no duty to take affirmative action to protect against it, and a person
generally has no duty to protect another from the conduct of third parties.
[Citations.]” (Univ. of Southern Calif. v. Sup. Ct. (“USC”)
(2018) 30 Cal.App.5th 429, 440.) An exception to the general rule of no
affirmative duty is where a “special relationship” exists. (Id.) “Under this
doctrine, ‘[a] defendant may owe a duty to protect the plaintiff from third
party conduct if the defendant has a special relationship with either the
plaintiff or the third party.’ [Citation.]” (Barenborg v. Sigma Alpha
Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.) “The key in each [special
relationship] is that the defendant’s relationship with … the tortfeasor …
places the defendant in the best position to protect against the risk of
harm…Thus, the defendant’s ability to control the person who caused the harm
must be such that ‘if exercised, [it] would meaningfully reduce the risk of the
harm that actually occurred.’” (Barenborg, supra, 33 Cal.App.5th
at 78.)
"[A] duty to control may arise if the defendant
has a special relationship with the foreseeably dangerous person that entails
an ability to control that person's conduct." (Regents, supra,
4 Cal.5th at p. 619, 230 Cal.Rptr.3d 415, 413 P.3d 656.) Examples of special
relationships with the persons posing the risks include "a parent with dependent
children," "a custodian with those in its custody," and "an
employer with employees when the employment facilitates [an] employee's causing
harm to third parties." (Rest.3d Torts, Liability for Physical and
Emotional Harm, § 41.)
Analysis
Third-Party Liability
Defendant’s
Initial Burden
In assessing Defendant’s liability for
third-party conduct, before the Court even considers foreseeability and duty,
the threshold issue whether Defendant’s conduct was a misfeasance or if a
special relationship exists between the parties must be met first. (Melton
v. Boustred (2010) 183 Cal.App.4th 521, 532; Brown v. USA Taekwondo
(2021) 11 Cal.5th 204, 209 [The threshold issue of the existence of a special
relationship must be met before an analysis of factors described in Rowland
to determine whether relevant policy considerations counsel limiting that duty.].)
Defendants met their
initial burden in showing that there was no misfeasance and that no special
relationship exists. Defendant Jake Paul held a party to celebrate his boxing
match victory at his home (UMF 1). Three security guards from Agate Security,
Inc. and the owner of Agate Security were hired for the night of November 28,
2020, from 5:00 p.m. until 3:00 a.m. on November 29, 2020 (UMF 3, 4). Paul
resided at the house owned by Performance Homes Trust (“Trust”) along with
various other individuals, including Demaurae Nichols (UMF 7). Trust did not
employ Nichols and had no control over him (UMF 9). At around 5:00 a.m.,
Plaintiff was engaged in an altercation, but Paul did not see the altercation,
did not participate in it, did not know about the altercation as it was
happening, and was nowhere in the vicinity (UMF 23). Paul, personally and as
trustee of Trust, did not do anything to confine Plaintiff to the property, nor
did Paul restrain Plaintiff from leaving (UMF 24). Paul did not provide any
instructions to the security guards during that night (UMF 26). Plaintiff did
not see Paul speak to the alleged mystery assailants (UMF 27). The alleged
assailants were not security guards hired by Defendants and Defendants had no
control over them. (UMF 31). No security guards were involved in the
altercation and none of the participants were wearing shirts with “SECURITY” on
them (UMF 34). Defendants have met their burden showing that they did not
affirmatively create a peril that endangered Plaintiff and did not hire or
control the alleged assailants.
Defendant’s
Burden
As
stated earlier, for Defendants to be held liable for third-party conduct,
Plaintiff needs to fulfill the threshold requirement of misfeasance or a
special relationship. Plaintiff glossed over these two issues and spent the
majority of his opposition analyzing duty under the Rowland factors.
Although Plaintiff argues at length that Defendant was negligent by failing to
provide adequate security, Plaintiff failed to address how Defendant’s failure
to provide adequate security constitutes misfeasance. Plaintiff also failed to
distinguish or address Melton v. Boustred (2010) 183 Cal.App.4th 521, a
case with similar facts to the present case, which was relied on heavily by
Defendants in their moving papers.
Melton
v. Boustred
In
Melton, the plaintiff was assaulted at a public MySpace party. No
security guard was present at the party. The Melton court held "an
actor is under no duty to control the conduct of third parties. But that rule
does not apply if the claim "is grounded upon an affirmative act of
defendant which created an undue risk of harm. The question … is whether
appellant created a 'peril,' that is, an unreasonable risk of harm to
others." (Id. at 533.) In coming to a conclusion, the court
analyzed Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th
398 and Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, and held
that because the violence that harmed plaintiffs was not "a necessary
component" of Defendant's party, Defendant took no action to stimulate the
criminal conduct, and no affirmative act was taken to create an undue risk of
harm, there was no misfeasance. (Melton, 183 Cal.App.4th at 535.) “To
impose ordinary negligence liability on [a property owner who] has done nothing
more than allow [his home] to be used for [a] party . . . would expand the
concept of duty far beyond any current models.” (Id.) In contrast, in Weirum,
the court found that defendant committed an affirmative act where a rock radio
station with an extensive teenage audience conducted a contest that rewarded
the first contestant to locate a peripatetic disc jockey, leading to a car
pursuit where one of the minors negligently forced a car off the highway,
killing its sole occupant.
In
fact, in Melton, Plaintiff attempted a common-sense argument, similar to
one advanced here, that a public invitation posted on MySpace to a free party
offering music and alcohol was substantially certain to result in an injury to
someone and that Defendant should have mitigated this risk. The court rejected
this line of reasoning, stating that common sense is not the standard for
determining duty. (Cf. Saelzler v. Advanced Group 400 (2001) 25 Cal.4th
763, 778) (declining "to adopt a rule of common sense that seemingly would
prevent summary judgment on the causation issue in every case in which the
defendant failed to adopt increased security measures of some kind").) (Melton
v. Boustred (2010) 183 Cal.App.4th 521, 538.)
Defendants’
lack of adequate security is not an affirmative act that created a peril or
undue risk of harm. The violence was not a necessary component of the party,
and Plaintiff did not show that Defendants encouraged the attack. In fact,
Plaintiff does not dispute that Defendants did not order the individual to
commit the assault, was not at the scene of the incident, and was not in any
way involved in the attack. (UMP 23-29.) It is also undisputed that the attack
took place at 5 a.m. when most people have already left the party. Defendants did
more than the defendants in Melton by attempting to provide security.
To
impose ordinary negligence liability on [a property owner who] has done nothing
more than allow [his home] to be used for [a] party . . . would expand the
concept of duty far beyond any current models. (Melton, 183 Cal.App.4th at
535.) Just as the court in Melton rejected the line of reasoning that
Defendant could have done more to mitigate the risk, this Court similarly
rejects the argument that Defendants owed a duty of care to Plaintiff just
because increased security measures could have been adopted.
Special
Relationship
The
hallmark of a special relationship is the control of the third party (Regents
of the Univ. of Cal. v. Superior Court (2018), 4 Cal.5th at p. 619).
Plaintiff, in its opposition, acknowledges that a special relationship is a
threshold question to be addressed before considering the Rowland factors
(Opposition at 11). However, Plaintiff did not address the special relationship
in the opposition and seems to have waived this argument. Nonetheless, the Court
reviewed the separate statement and the evidence presented by Plaintiff and finds
that Plaintiff failed to raise a triable issue of fact regarding whether
Defendants controlled Nichols and the other unidentified assailant.
Defendants
presented evidence that Nichols was a resident at the house, was not an
employee of Agate Security, and that Defendants did not hire or control Nichols
or the other alleged unnamed assailant. (Paul Decl. ¶ 2, 8 attached as Exhibit
A to TSVE; Angert Decl. ¶ 29; Deposition of David Brackney at 60:2-7, 61:3-7
attached as Exhibit 29 to TSVE). The security guards Defendants hired left at
3:00 am, two hours prior to the incident. (Declaration of Torray Scales ¶ 3
,6.) Plaintiff presented testimony that Nichols wore the security shirt at one
point in time but took it off (Brackney Depo. at 56:7-15) and that Plaintiff
believed that Nichols was helping with security (Brackney Depo. at 62:8-10,
80:2-17, 173:25-174:4, 174:15-19). Plaintiff’s evidence raises a triable issue
of fact as to whether Nichols was performing security duties. As a resident of
the property, it is understandable that he might be performing some security
functions; however, the issue is whether he was doing so on his own accord or
under the employment, directive, control or authorization of Defendants. The
evidence introduced by Plaintiff fails to show that Defendants controlled or
directed Nichols or even authorized him to perform any security functions.
Plaintiff
faces the same issue with regard to the other unnamed assailant. Bailey Hamer,
Plaintiff’s own witness, testified that the other assailant was not a security
guard employed by Agate but a trainer (Deposition of Bailey Hamer at 32:4-16,
58:21-59:1, 39:24-40:5). Plaintiff’s evidence shows that the other alleged
assailant, similar to Nichols, might have been performing some security tasks such
as checking people in at the party, but at no point was he wearing a shirt with
SECURITY on it. (Brackney Depo. at 56:1-6, 56:22-57:7, 61:10-25, 64:9-19).
Again, Plaintiff failed to show that the alleged assailant did not do these
security related tasks under his own volition and Plaintiff failed to raise a
triable issue of fact that Defendants directed, controlled or authorized the
trainer/assailant to perform security tasks. Thus, Plaintiff failed to raise a
triable issue of fact as to the issue of special relationship.
Because Plaintiff
failed to raise a triable issue of fact as to misfeasance and special
relationship, no further analysis of duty is needed, and Defendants’ motion for
summary judgment as to the 4th cause of action for negligence is GRANTED.
False Imprisonment
To establish a claim
for False Imprisonment, Plaintiff must prove that: (1) Defendant Paul
intentionally deprived Plaintiff of his freedom; (2) the restraint compelled
Plaintiff to stay against his will; (3) Plaintiff was actually harmed; and (4) Defendant
Paul’s conduct was a substantial factor in causing Plaintiff’s harm. (See
CACI 1400).
The moving party has
met its burden by showing that Defendants did not do anything to confine
Plaintiff to the property or restrain Plaintiff from leaving (UMF No. 56). Paul
did not see the altercation, did not participate in it, did not know about the
altercation as it was happening, and was nowhere in the vicinity (UMF No. 55).
Finally, Plaintiff admits that he did not see Paul provide any instructions to
the security during that night (UMF No. 57); he did not see Paul speak to the
alleged mystery assailants (UMF No. 58); he did not see Paul instruct anyone to
act as security that night (UMF No. 59); and he did not see Paul instruct
anyone to escort Plaintiff out of the property (UMF No. 60).
Plaintiff argues that
Defendants are liable for false imprisonment under the theory of vicarious
liability for Nicolas and the other unnamed assailant’s conduct done in the
scope of employment. However, as stated above, Plaintiff failed to show how
Nicolas or the unnamed assailant were employees of Defendants or how Defendants
exercised control over them. The assailants are not security guards of Agate
Security hired by Defendants. Plaintiff also failed to introduce evidence
showing that Defendants exercised controlled over assailant’s actions. Thus,
Defendants’ motion for summary judgment is GRANTED as to the fifth cause of
action for false imprisonment.
MOTION FOR SUMMARY JUDGMENT
Moving Party: Defendant Logan Paul
Responding Party: Unopposed
Notice: Sufficient
Ruling: MOTION FOR SUMMARY JUDGMENT IS MOOT
AND DENIED
Logan
Paul filed a motion for summary judgment, but Logan Paul was dismissed on
5/31/24. Therefore, the present motion is moot and is denied.
PLEASE TAKE NOTICE:
If a party intends to submit on
this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case
number.¿The body of the email must include the hearing date and
time, counsel’s contact information, and the identity of the party submitting.
Unless¿all¿parties submit by email to this
tentative ruling, the parties should arrange to appear remotely (encouraged) or
in person for oral argument.¿You should assume that others may appear at the hearing
to argue.
If the parties neither submit nor
appear at hearing, the Court may take the motion off calendar or adopt the
tentative ruling as the order of the Court.¿ After the Court has issued a
tentative ruling, the Court may prohibit the withdrawal of the subject motion.