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.) 




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. 




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.




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.



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.