Judge: Mark A. Young, Case: 19STCV25769, Date: 2023-03-14 Tentative Ruling
Case Number: 19STCV25769 Hearing Date: March 14, 2023 Dept: M
CASE NAME: Fattorini, et
al., v. Merriman, et al.
CASE NO.: 19STCV25769
MOTION: Warwick’s
Motion for Summary Judgment/Adjudication
HEARING DATE: 3/14/2023
Legal
Standard
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“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 the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that
one or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary
adjudication as an alternative to a request for summary judgment, the request
must be clearly made in the notice of the motion. (Gonzales v. Superior
Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to” subdivision (t).
(CCP, § 437c(t).)
To
prevail, the evidence submitted must show there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP, § 437c(c).) The motion cannot succeed unless the
evidence leaves no room for conflicting inferences as to material facts; the
court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when a material fact is the witness’s state of
mind and “that fact is sought to be established solely by the [witness’s]
affirmation thereof.” (CCP, § 437c(e).)
Once
the moving party has met their burden, the burden shifts to the opposing party
“to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish
anything by affidavit unless and until the moving party has by affidavit stated
facts establishing every element... necessary to sustain a judgment in his
favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary
judgment motion. The function of the pleadings in a motion for summary judgment
is to delimit the scope of the issues and to frame the outer measure
of materiality in a summary judgment proceeding.” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations
and citations omitted.) “Accordingly, the burden of a defendant moving for
summary judgment only requires that he or she negate plaintiff's theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in the
pleadings.” (Ibid.)
EVIDENTIARY ISSUES
Defendant’s objections to Plaintiff’s evidence are
immaterial, and thus not ruled on. (CCP § 437c(q).) With that said, the Court notes that
Plaintiff, much like with Defendant Wehbe’s motion for summary judgment, relies
almost exclusively upon hearsay evidence, such as Wehbe’s autobiography, along
with text messages that lack any foundational basis for admissibility.
Analysis
Defendant Sunset Wilcox, LLC doing
business as The Warwick (“The Warwick” or “Defendant”) requests summary
judgment, or in the alternative summary adjudication, of the complaint and
cross-complaint against it. The noticed issues include:
Issue No. 1: The Warwick Cannot be Vicariously Liable for
Wehbe’s Conduct because Wehbe was an Independent Contractor.
Issue No. 2: The Warwick Cannot be Vicariously Liable for
the Conduct of Wehbe, Even if Wehbe is Considered an Employee of The Warwick.
Issue No. 3: The Warwick Did Not Conspire with Other Parties
to Harm Ms. Fattorini.
Issue No. 4: The Warwick Cannot be Liable for Negligence as
a Matter of Law because The Warwick Did Not Owe Ms. Fattorini a Duty of Care
and Did Not Breach Any Duty.
Issue No. 5: The Warwick Cannot be Liable for Negligence as
a Matter of Law because None of The Warwick’s Actions were the Substantial
Factor in the Alleged Harm.
Issue No. 6: The Warwick Cannot be Liable for Battery as a
Matter of Law because The Warwick Did Not Touch Ms. Fattorini or Cause Ms.
Fattorini to be Touched Without Her Consent and with the Intent to Cause Harm.
Allegations
Plaintiffs’ claims against the The Warwick
are based on the agency of Wehbe, who in turn conspired with the other
individual defendants to drug Decedent Fattorini with GHB without her consent, ultimately
leading to her death. The SAC alleges
that Wehbe is a club promoter and a partner at one of Los Angeles's nightclubs
– The Warwick. (SAC ¶ 16.) As a club promoter and partner of The Warwick, he
oversaw VIP relations and facilitated regular appearances from his personal
network of talent. Decedent met Wehbe a few months before her death on July 17,
2017. Wehbe began inviting her and her friends to the Warwick, providing
"bottle service" to them, and introducing them to his network. (¶
17.) As a part of his business, he would offer and urge everyone, including
Decedent, to consume cocaine and party with him around his VIP network until
the sun came up. (Id.)
During the week of July 17, 2017,
Wehbe invited Decedent to a new nightclub project he was promoting in
Hollywood, the Highlight Room. (SAC ¶ 18.) Plaintiff was pressured by her
friend Maass to join herself and Wehbe. Decedent was shown into the club to
join Wehbe at his exclusive promoter's table, where they imbibed and danced
until 2:00-2:30 a.m. the following day. Merriman was also an invited guest at
The Highlight Room that night, along with other members of Wehbe’s VIP network.
Afterwards, Wehbe went to his house and asked some of his network to bring
cocaine over to his house to keep the party going. He also invited Decedent and
Maass to come over to his house. (¶ 19.) Decedent and Maass went over to
Wehbe’s house. (¶ 20.) Wehbe texted his friends, Castro and Merriman, to come
over to his place. (Id.)
Wehbe “assigned” Decedent to
Merriman and Maass to Castro. (SAC ¶ 21.) Merriman arrived at Wehbe’s house
between 8:30 and 9:00 a.m. and was carrying “some kind of bottle with him
filled with a liquid.” (¶ 22.) After Merriman arrived, Decedent texted Wehbe
that his “friend just poor’d half G in my drink [¶] And I have never [¶] Don’t
go to sleep come Check on mr llllllllllllqlqllqllll [¶] Me when you can.” (¶
23.) “G” is an abbreviation for gamma hydroxybutyrate (hereafter referred to as
"GHB"), which is a central nervous system (CNS) depressant and
sometimes used as a “date rape” drug. (¶ 24.) Eventually, Merriman ordered an
Uber to take Decedent, Maass, Castro, and Merriman to Maass’s apartment. (¶¶
25-26.)
At approximately 3:16 p.m., Maass
called 911 to report that she had been trying to wake Decedent up, but Decedent
was unresponsive. (SAC ¶ 27.) Maass gave contradictory accounts of whether
Merriman was at her apartment at the time she discovered Decedent laying unresponsive
on the floor. (¶¶ 28-29.) An autopsy was performed by a coroner approximately
41 hours later. (¶ 30.) Because the coroner had already been given a
preliminary investigator's case report which indicated that no foul play was
suspected, the autopsy did not include a variety of tests or other evidence
gathering. (¶ 30.) For example, the coroner did not take any photographs of any
of the bruises on Decedent’s body, and a sexual assault test was not conducted.
Since the autopsy was already performed, a sexual assault exam could not longer
be completed. The autopsy showed that Decedent had alcohol cocaine, and GHB
found in her blood. (¶ 31.) The elevated levels of GHB led to her death. (Id.)
The SAC alleges that Defendants
conspired with each other to commit battery. (SAC ¶ 35.) Defendants knew that
Decedent did not consent to be drugged, bruised, touched, dragged, or otherwise
physically contacted by the Defendants. (¶ 36.) Decedent lost control of her
ability to give knowing and voluntary consent to any such contact. (¶¶ 37-39.)
Decedent did not consent to having certain drugs put in her drink or otherwise
consumed by her, either due to her inability to consent or due to such drugs
being administered to her over her objection. Defendants intentionally engaged
in the foregoing conduct. (¶ 41.) As a proximate result of this non-consensual
contact by the Defendants, Decedent suffered harm that contributed to and
caused her death. (¶ 42.)
Relevant Causes of Action
“Battery is an offensive and
intentional touching without the victim’s consent.” (Kaplan v. Mamelak
(2008) 162 Cal.App.4th 637, 645.) “The essential elements of a cause of action
for battery are: (1) defendant touched plaintiff, or caused plaintiff to be
touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669)
Intent is satisfied if the defendant acted with willful disregard of the
plaintiff’s rights. (Ashcraft v. King (1991) 228 Cal.App.3d 604,
613.)
The elements for negligence are:
(1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3)
causation; and (4) damage to the plaintiff. (County of Santa Clara v.
Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)
“Conspiracy is not a cause of action, but
a legal doctrine that imposes liability on persons who, although not actually
committing a tort themselves, share with the immediate tortfeasors a common
plan or design in its perpetration.” (Applied Equipment Corp. v. Litton
Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.) By participating, a
co-conspirator effectively adopts as their own the torts of other
co-conspirators within the ambit of the conspiracy. In this way, a
co-conspirator incurs tort liability co-equal with the immediate tortfeasors. (Wyatt
v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.) Conspiratorial agreements may be circumstantially inferred
from circumstances including the nature of the acts, the relations of the
parties (e.g., family business, or corporate officers or directors), and the
interests of the alleged conspirators. (Wyatt v. Union Mortgage Co.
(1979) 24 Cal. 3d 773, 784-786.)
Independent Contractor
The Warwick contends that Wehbe was
an independent contractor. Generally, an independent contractor relationship does
not impart vicarious liability on the principal. (Snyder v. Southern Cal.
Edison Co. (1955) 44 Cal.2d 793, 915.) An independent contractor is defined
as “someone who renders services in the course of an independent employment or
occupation, following his employer’s desires only in the results of the work,
and not the means whereby it is to be accomplished.” (Varisco v. Gateway
Science & Engineering, Inc (2008) 166 Cal.App.4th 1099, 1103.) Control
is the principal factor in determining whether an individual worker is an
employee or an independent contractor. (Id.) “An independent contractor is ‘one
who renders service in the course of an independent employment or occupation,
following his employer's desires only in the results of the work, and not the means
whereby it is to be accomplished.’ [Citations.] On the other hand, the
relationship of master and servant or employer and employee exists whenever the
employer retains the right to direct how the work shall be done as well as the
result to be accomplished. [Citations.] But this rule requires that the right
to exercise complete or authoritative control, rather than mere suggestion as
to detail, must be shown. [Citations.] Also, the right to control, rather than
the amount of control which was exercised, is the determinative factor.” (Id.,
quoting S.A. Gerrard Co. v. Industrial Acc. Com. (1941) 17 Cal.2d 411,
413.) Thus, the most significant question in the independent
contractor/employee determination is “‘whether the person to whom service is
rendered has the right to control the manner and means of accomplishing the
result desired.’” (S.G. Borello & Sons, Inc. v. Department of Industrial
Relations (1989) 48 Cal.3d 341, 350, citations omitted.)
Case law has identified secondary
indicia of the nature of the work relationship. (Varisco, supra, 166
Cal.App.4th at 1103.) These are “(a) whether the one performing services
is engaged in a distinct occupation or business; (b) the kind of occupation,
with reference to whether, in the locality, the work is usually done under the
direction of the principal or by a specialist without supervision; (c) the
skill required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for the
person doing the work; (e) the length of time for which the services are to be
performed; (f) the method of payment, whether by the time or by the job; (g)
whether or not the work is a part of the regular business of the principal; and
(h) whether or not the parties believe they are creating the relationship of
employer-employee.” (Id. at 1103-1104, citing Borello, supra, 48 Cal.3d
at 351.)
There is evidence here that supports
some of the factors of an independent contractor relationship between The Warwick
and Wehbe. For instance, The Warwick did
not control or advise Wehbe on the way in which he promoted the club. (UMF 5.) Furthermore, Exhibit A, ¶ B states that
Wehbe was “currently” acting as an independent contractor providing promotional
services at The Warwick. The parties’ understanding of the relationship is a
single factor in favor of this relationship.
However, on the whole, The Warwick
fails to demonstrate the necessary indicia of an independent contractor
relationship between itself and Wehbe. Preliminarily, the Court notes that no
UMF directly claims that Wehbe is an independent contractor. Instead, the UMFs
provide that Wehbe “served as a promoter for The Highlight Room during this
timeframe.” (UMF 2.) Most critically, The
Warwick does not present specific and substantial evidence that they did not
have the ability to control Wehbe’s promotional work at the time, or generally,
such that he was an independent contractor. As noted, when considering an
independent contractor status, the most critical factor is the ability to
control the agent’s work. The Warwick states that they never “control[ed] or
advise[d] Wehbe on the way in which he promoted the club.” (Jarret Decl., ¶ 8.)
By way of example, The Warwick did not tell Wehbe to promote the club at
certain locations or at particular times. The evidence, however, does not demonstrate
that Warwick did not have the ability to control Wehbe’s conduct. While
Warwick presents evidence that they did not control Wehbe as to any particular
promoting activity, they fail to present evidence that they were not able to
control Wehbe regarding his promoting activities for The Warwick.
Moreover, The Warwick fails to show
that Wehbe’s role would fit into the other factors suggesting an independent
contractor relationship. The job of a nightclub promoter appears
part-and-parcel to the regular operation of a nightclub business, and is
therefore not a distinct occupation or profession in any traditional sense. The
Warwick does not offer evidence as to whether this type of work is “usually”
done under the direction of the principal. The record does not provide that
there is any unique, professional skill involved with the job of a promoter.
Certainly, The Warwick provides the place of work for Wehbe – the nightclub
itself – and the services available there. Furthermore, the contract appears to
be of an indeterminate length, suggesting an employment relationship.
Notably, the method of payment to
Wehbe is not only a by-time or by-the-job payment, as it includes an
“Assignment of Net Profits Interest” which provides Wehbe 2% of all “Cash
Available for Distribution,” i.e., net profits. (UMF 4, see Jarrett Decl., Ex.
A, ¶ 1.) While Wehbe also would also receive a minimum payment for each
operational day on which he worked, and a commission of based on the business
he generated, his share of the profits in the entire business weighs
against an independent contractor relationship.
Thus, the Court DENIES summary
adjudication based on Wehbe’s purported status as an independent contractor.
Agency/Scope of Employment
In their motion, The Warwick further
argues that Wehbe was not working as a promoter for The Warwick on the night or
morning of the incident because The Warwick was closed at the time. They note
that none of the individuals were guests of The Warwick the night of the
incident. They reason that after-hours social activities of a club promoter on a
day that he didn’t even work for The Warwick are outside of the course and
scope of the contractual engagement. They also claim that The Warwick never
encouraged Wehbe to engage in the type of conduct at issue in this case.
Under the doctrine of respondeat
superior, an employer may be held vicariously liable for torts committed by an
employee within the scope of employment. (Maria D. v. Westech Residential
Security, Inc. (2000) 85 Cal.App.4th 125, 134.) For the doctrine of
respondeat superior to apply, the plaintiff must prove that the employee's
tortious conduct was committed within the scope of employment. A risk arises
out of the employment when 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. (Id.) In other words, where the question is one of vicarious
liability, the inquiry should be whether the risk was one that may fairly be
regarded as typical of or broadly incidental to the enterprise undertaken by
the employer. (Id.; See also Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202, 219.) Tortious conduct that violates an employee’s
official duties or disregards the employer’s express orders may be within the
scope of employment, as well as acts that do not benefit the employer, or are
willful, or malicious in nature. (Maria D., supra, 85 Cal.App.4th at
134.)
Conduct is considered to
substantially deviate from the scope of employment if it is not foreseeable or
inherent to the duties of the employee. (Farmers Inc. Group, supra, 11
Cal.4th at 1005.) Additionally, when determining if conduct is in pursuit of a
personal end, the court will look at the main purpose of the injury-producing
activity to determine liability. (See Le Elder v. Rice (1994) 21
Cal.App.4th 1604, 1607 [holding an employer is not vicariously liable for an
employee’s tortious conduct when the employee’s job required him to be on call
at all hours because the employee was engaging in a purely personal activity at
the time].)
In support of their argument that
Wehbe’s conduct was outside the scope of employment, The Warwick submits the
following material facts. On Thursday evening, July 20, 2017, Decedent visited
Tao Restaurant and The Highlight Room with Wehbe, Monica Maass (“Maass”) and
other friends. (UMF 1.) Wehbe served as a promoter for The Warwick and The
Highlight Room during this timeframe. (UMF 2.) Wehbe left the Highlight Room at approximately
2:00 a.m. Friday morning, July 21, 2017. (UMF 11.) Wehbe arrived at his home at
approximately 2:15 a.m., at which point he admits was no longer working as a
promoter for The Highlight Room or The Warwick. (UMF 12.) Decedent, Maass and
others stayed at the Highlight Room until 2:00 or 2:30 a.m. Friday morning,
July 21, 2017, and eventually arrived at Wehbe’s home at approximately 4:00 a.m.
(UMF 13.) At approximately 6:00 a.m., Wehbe invited J.P. Castro (“Castro”) and
Shawn Merriman to his home. (UMF 14.) Merriman arrived at Wehbe’s home between
8:30 and 9:00 a.m. (UMF 15.) At 9:19 a.m., Decedent texted Wehbe that one of
Wehbe’s friends poured GHB in her drink. (UMF 16.) Between 10:00 and 10:30 a.m.,
Decedent left Wehbe’s house with Maass, Castro and Merriman and went to Maass’
apartment. (UMF 17.) Approximately five hours later, at 3:16 p.m., Maass called
911 to report that she discovered Decedent was not moving. (UMF 18.) The
paramedics arrived shortly thereafter and found Decedent non-responsive. (Id.)
On the night of Thursday, July 20,
2017, and the early morning hours of Friday, July 21, 2017, The Warwick was not
open for business. (UMF 9.) Although Wehbe served as a promoter for The Warwick
during the relevant timeframe, The Warwick contends that he was not
acting as a promoter (as defined as an individual responsible for driving
customers to attend events or locations) for The Warwick on the night or
morning of the incident. (UMF 10.) Notably, Wehbe also served as a
promoter for the Highlight Room, which was open on the night and morning
of the Incident. (UMF 20.)
In their motion, The Warwick
suggests that Wehbe was not acting as their agent during the incident. Wehbe
was assigned a singular task for The Warwick – to promote The Warwick to
potential guests. (UMF 31.) Wehbe was not paid a salary or hourly rate;
instead, he was paid in direct correlation with his “success” in completing
this task. (UMF 3-4.) To wit, for each night that The Warwick was open during
which Wehbe provided services, Wehbe was paid a minimum payment, a percentage
for the table sales from patrons of The Warwick who were identified and
procured by Wehbe, and a percentage of the overall distributable net cash flow
resulting from operations of The Warwick. (UMF 4.) The Warwick did not control
or advise Wehbe on the way in which he promoted the club. (UMF 5.) For
instance, The Warwick did not tell Wehbe to promote the club at certain
locations or at particular times. (Id.) Wehbe did not have any management or
decision-making authority with respect to The Warwick. (UMF 6.) He did not
manage any of The Warwick’s employees or otherwise have control over how The
Warwick operated its business. (UMF 7.) It did not pay for, or reimburse, Wehbe
for any of his social activities or social networking (except for the
aforementioned payments for promotion) which includes social networking, or
hosting “off-the-job” parties. (UMF 23, 26.) None of The Warwick owners,
managers, or supervisors had knowledge of who Wehbe was with, where he was, or
what he was doing prior to or at the time of the Incident. (UMF 19-21.) The
Warwick owners, managers, or supervisors had no knowledge, intent, or any
agreement with the other Defendants, to commit battery. (UMF 27-31.)
The Warwick characterizes Wehbe’s
conduct as his social life or personal activities outside of his work as a
promoter at The Warwick. (UMF 22.) The Warwick nor any of its owners, managers,
or supervisors asked or expected Wehbe to host “off-the-job parties” with
potential guests of The Warwick. (UMF 24.) The Warwick had no knowledge that
Wehbe would host an “off-the-job party” with Fattorini, Merriman, Castro or
Maass at the time of the Incident. (UMF 25.) As such, The Warwick argues that
this Court should conclude that Wehbe’s conduct was outside the scope of employment.
Here, the evidence showing that
Wehbe’s party was “off-the-job” is conclusory and does not strongly suggest
that the party was truly outside the scope of employment, considering the
alleged nature of Wehbe’s promotion work. The SAC alleges that Wehbe was a
partner at The Warwick, and as a club promoter and partner, he oversaw “VIP
relations and facilitating regular appearances from his personal network of
renowned talent.” (SAC ¶ 16.) The evidence does not contest this scope. Liberally
construed, this necessary requires Wehbe to create and maintain personal
relationships with VIPs (such as Merriman) and women as potential guests of The
Warwick. The fact that The Warwick was closed at the time does not mean that
Wehbe was not working as a promoter for The Warwick. Thus, the
conclusory assertions that Wehbe was not working at the time do not shift the
burden on this issue. Defendants would need to demonstrate that at the time a
fact finder could not find that he was not facilitating regular appearances or
maintaining VIP relations for the Warwick. As a result, the evidence, construed
in a light most favorable to the non-moving party, demonstrates that he was
facilitating his relationships with potential VIP guests at the relevant time.
Therefore, the Warwick fails to
shift the burden on the scope of employment issue.
Duty
The Court would
also find that The Warwick’s burden is not met demonstrating a lack of duty. As
the Warwick has failed to show that the incident was outside Wehbe’s scope of
employment, vicarious liability applies. Thus, The Warwick would share in
Wehbe’s duties.
There is no
liability absent a duty no matter how easily the injury might have been
prevented.¿(J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th
388, 396; see Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397
[threshold element is existence of duty to use due care toward another].)¿The
two broad categories of duty are: (1) duty to use care in ordinary activities
(under Civil Code §1714); and (2) duty to act affirmatively to prevent harm.
The existence and scope of duty are questions of law for the court.¿ (Artiglio v. Corning,
Inc. (1998) 18 Cal.4th
604, 614.) Generally,
an actor is under no duty to control the conduct of third parties or
warn those endangered by such conduct.¿(Melton v. Boustred (2010) 183
Cal.App.4th 521, 533; McGarry v. Sax (2008) 158 Cal.App.4th 983, 995.) “[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. (2018) 30 Cal.App.5th 429, 440,
emphasis added.)
In considering whether a party has
a legal duty in a particular factual situation, a distinction is drawn between
claims of liability based upon misfeasance and those based upon nonfeasance. “
‘ “Misfeasance exists when the defendant is responsible for making the
plaintiff's position worse, i.e., defendant has created a risk. Conversely,
nonfeasance is found when the defendant has failed to aid plaintiff through
beneficial intervention....” ’ ” (Seo v. All-Makes Overhead Doors (2002)
97 Cal.App.4th 1193, 1202–1203, citations omitted.) Liability for misfeasance
is based on the general duty of ordinary care to prevent others from being
injured by one's conduct. (Id., citing Civ. Code, § 1714(a); Weirum
v. RKO General, Inc. (1975) 15 Cal.3d 40, 49.) This is contrasted with
liability for nonfeasance, which is limited to situations in which there is a
special relationship that creates a duty to act. (Eric J. v. Betty M.
(1999) 76 Cal.App.4th 715, 717.) “The basic idea is often referred to as the
‘no duty to aid rule,’ which remains a fundamental and long-standing rule of
tort law . . . ‘As a rule, one has no duty to come to the aid of another. A
person who has not created a peril is not liable in tort merely for failure to
take affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act.’ ” (Id. at
727.)
The
SAC alleges facts showing that Wehbe created the peril in this situation,
which is misfeasance. In such
circumstances, Wehbe had a duty to act. (See Suarez
v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, fn. 6;
see also 6 Witkin, Summary of California Law, Torts §§ 1202-1203; Rest.2d Torts
§ 314, comm. A.) The SAC alleges Wehbe’s
failure to act under the circumstances.
The SAC alleges active misfeasance
on the part of Wehbe. Thus, the Warwick’s arguments concerning the Warwick’s
“special relationship” with Decedent or premises liability do not show
entitlement to judgment as a matter of law.
Conspiracy, Substantial Factor, Battery
The Warwick does not establish that
it did not engage in a conspiracy with the other defendants, or that its
actions were not substantial factors in causing the harm, because The Warwick
has not established that Wehbe was not acting within the scope of employment,
or as an independent contractor. Thus, The Warwick may be liable for Wehbe’s
torts. Whether or not The Warwick was open that night, or that other agents of
the Warwick did not conspire or cause harm, does not demonstrate entitlement to
judgment as a matter of law.
Furthermore, the Warwick relies on
the same arguments to support their motion as to the cross-complaint for
apportionment of fault, indemnity, and declaratory relief. For the same
reasons, that motion cannot be granted.
Accordingly, Defendant’s motion is
DENIED on all issues.