Judge: Nathan Vu, Case: 2019-01100760, Date: 2022-11-14 Tentative Ruling
Please Note: The hearing on this matter is scheduled for 8:30 A.M.
Motion for Summary Judgment or, in the Alternative, Summary Adjudication
Defendants Quintana Office Property, LLC’s and Hines Interest Limited Partnership’s motion for summary judgment is DENIED.
Defendants Quintana Office Property, LLC’s and Hines Interest Limited Partnership’s motion for summary adjudication is DENIED as to the first, fifth, and sixth causes of action, and GRANTED as to second, third, and fourth causes of action.
Defendants Quintana Office Property, LLC’s and Hines Interest Limited Partnership’s evidentiary objections to the declaration of Norma V. Garcia are OVERRULED as to evidentiary objection numbers 5 and 14, and SUSTAINED as to evidentiary objection numbers 6, 7, and 15. The court need not rule on the remainder of the objections as they were not material to the disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q).)
Defendants Quintana Office Property, LLC’s and Hines Interest Limited Partnership’s evidentiary objections to the declaration of Casey R. Johnson are OVERRULED as to evidentiary objection numbers 2-6, 9, and 11-12. The court need not rule on the remainder of the objections as they were not material to the disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q).)
Defendants Quintana Office Property, LLC and Hines Interest Limited Partnership (Moving Defendants) move for summary judgment, or in the alternative summary adjudication.
Standard for Summary Judgment and Summary Adjudication
“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Civil Proc. Code, § 437c, subd. (c).)
“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, . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Civil Proc. Code, § 437c, subd. (f)(1).)
A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)
A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Civil Proc. Code § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, italics original.)
In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)
If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)
The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)
In ruling on a motion for summary judgment or summary adjudication, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, citations omitted.) Courts “’construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.)
A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)
Undisputed Background Facts
Defendant Quintana Office Property, LLC (Quintana) owns the Subject Premises, which was comprised of five separate buildings: 17875 Von Karman (Building A), 17877 Von Karman (Building B or Subject Building), 17872 Gillette (Building C), 17838 Gillette (Building D), and 17892 Gillette (Origin).
On 07/23/2015, Quintana and Hines Interest Limited Partnership (Hines) entered into a Property Management and Leasing Agreement by which Hines was to provide day-to-day management and operation of the Subject Premises.
In or about 02/06/2017, Quintana and Defendant Universal Protection Services, LP (UPS) entered into a Building Services Contract wherein UPS was hired to provide professional security services at the Subject Premises from Monday through Friday, 6:00 a.m. to 8:00 p.m., and night patrols seven days a week, with a roving officer patrolling the Subject Premises twice every evening for approximately 20-30 minutes.
In or about 03/01/2017, Quintana and Defendant Universal Building Maintenance, LLC (UBM) entered into a Building Services Contract wherein UBM was hired to provide janitorial services at the Subject Premises.
Plaintiff was hired by UBM as an employee on or around 12/23/2018. As part of her regular duties, Plaintiff was to clean office buildings after typical business hours (i.e., on the night shift). At approximately 1:20 a.m. on 02/06/2019, Plaintiff suffered an assault and battery at the hands of Eduardo Godoy Gonzalez (Gonzalez) at the Subject Building.
1st Cause of Action (Negligence) and 6th Cause of Action (Premises Liability)
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
“The relationship between a possessor of land and an invitee is a special relationship giving rise to a duty of care.” (University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 444, disapproved of on other grounds, Brown v. USA Taekwondo (2021) 11 Cal.5th, 204, 222, fn. 9.) “The duty of care includes a duty to take reasonable steps to protect persons on the property from physical harm caused by the foreseeable conduct of third parties,” including foreseeable criminal acts. (University of Southern California v. Superior Court, supra, 30 Cal.App.5th at p. 444.)
“[T]he 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 v. Olsher (2007) 41 Cal.4th 1205, 1213.)
In determining a duty’s existence and scope, the court should consider several factors: “‘[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn.5, disapproved of on other grounds, Reid v. Google (2010) 50 Cal.4th 512, 527, fn. 5, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113.)
“Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.” (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213; see also Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189–1190, fn. 2.) “’[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.’” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at pp. 678–679, quoting Gomez v. Ticor (1983) 145 Cal.App.3d 622, 631, citations omitted.) The Supreme Court has described this analysis as a “sliding-scale balancing formula.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243.)
In Castaneda v. Olsher, the Supreme Court explained the steps required in the duty analysis:
“First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court’s determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.”
(Castaneda v. Olsher, supra, 41 Cal.4th at p. 1214, quoting Vasquez v. Residential, Inc. (2004) 118 Cal.App.4th 269, 285.)
The court must first consider what actions Plaintiff claims Moving Defendants were obliged to take in order to protect Plaintiff from being assaulted. The Third Amended Complaint (TAC) however, does not identify any specific actions Moving Defendants should have taken.
Rather, the TAC alleges that Hines, as manager of the Subject Premises, owed “a responsibility to maintain a safe working environment for all employees and contractors it hired to do business at or work at the Subject Premises, including [Plaintiff].” (TAC, ¶ 26.) Plaintiff also alleges that Quintana, as the owner of the Subject Premises, had “a duty to inform, warn, and institute appropriate protective measures to safeguard employees such as Plaintiff, who were working late at night” at the Subject Premises. (TAC, ¶ 27.)
The first cause of action for negligence alleges Moving Defendants, UBM, and UPS were aware of ongoing and existing security malfunctions and/or security breaches that had resulted in intruders gaining access into the Subject Premises and/or Subject Building and attacking other janitorial workers. (TAC, ¶ 39). The TAC pleads that the Moving Defendants failed to provide a safe environment for janitorial workers. (TAC, ¶ 45.)
Because Plaintiff did not identify any specific action in the TAC that Moving Defendants should have taken, Moving Defendants are not required to present evidence showing the burdens associated with, the feasibility of, or the likely success of any particular action identified in the complaint. (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 [to meet its initial burden, “defendant moving for summary judgment need address only the issues raised by the complaint”].)
In her opposition to the instant motion, Plaintiff argues that Moving Defendants owed a duty to Plaintiff to ensure the security measures they attempted to implement were executed competently. However, landlords should not be the insurers of public safety. (See Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 238.) Thus, the adequacy of the existing security measures is not the proper test for determining whether a land owner or manager has a duty to prevent specific third party criminal conduct. (Tan v. Arnel Management Company (2009) 170 Cal.App.4th 1087, 1101.) Courts will impose a duty on a landlord to prevent a third party’s foreseeable criminal act only when the act is likely to occur in the absence of specific precautionary measures proposed by the injured plaintiff. (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 238.)
Plaintiff does assert actions that Moving Defendants failed to take in her opposition to the instant motion. This includes:
Each of these failures points to an action Moving Defendants could have taken to protect Plaintiff.
Some of the actions – implementing a system to review security camera footage and creating policies and procedures for UPS’s overnight security officers — are burdensome measures that require a heightened degree of foreseeability to impose under the prescribed sliding-scale balancing formula. (See Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 244 [“To the extent plaintiff's special-relationship-based claim rests upon an assertion that defendant was legally required to provide a guard or guards or to undertake any similarly burdensome measures, . . . plaintiff was required to demonstrate heightened foreseeability in the form of prior similar criminal incidents.”]; Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1216–1218 [absent “extraordinary foreseeability,” landlord did not owe legal duty to existing tenants to screen and conduct criminal background checks on applicant who “looks, dresses or talks like a gang member”].)
However, repairing doors and door locks that are not operating properly, securing the broken window, and determining how long it would take to conduct a complete door check impose only light or moderate burdens. This is particularly true for repairing doors and door locks and securing the broken windows, which the Moving Defendants would likely have undertaken even in the absence of safety considerations – such as for aesthetic or utilitarian reasons.
The controlling question is whether the burden of imposing a duty to take a specific action to prevent criminal conduct is warranted based on the foreseeability of the specific conduct. (Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1213–1214.) The degree of foreseeability required to impose a duty on a landlord to take a particular action to prevent third party criminal conduct varies depending on the burden associated with imposing that duty. The greater the burden, the more foreseeable the criminal conduct must be. (Id.)
Moving Defendants point to the fact that the criminal conduct at issue was an unprovoked and sudden assault by a random outsider. However, it is undisputed that between June 2017 and February 2019, an attempted burglary of the mechanical room, car break-ins and thefts, incidents of vandalism, and acts of trespass in the parking garage and common spaces occurred at the Subject Premises. (Keith Decl. ¶ 22, Exh. G; Nulph Decl. ¶ 22, Exh. 22, Exh. G; Johnson Decl., ¶¶ 11-12.) It is also undisputed that an incident involving a female janitor occurred three or four years prior to the attack on Plaintiff in which a man tried to follow the janitor, who was forced to run back inside the building for safety. (Arevalo Supp. Decl., Exh. A [Priego Depo. Tr. at 5:16-22]. The janitor had gone outside to throw out the trash and a man tried to follow her. The janitor ran, entered the building, and the man left. (Id.)
These incidents do not satisfy the heightened foreseeability required for proposed security measures that are onerous. However, the documented incidents satisfy the required showing for less burdensome actions such as repairing doors and door locks that are not operating properly, securing the broken window, and determining how long it would take to do a complete door check.
Imposing such burdens on the Moving Defendants in this case is reasonable once the court balances the burden against the foreseeability of the harm. (See Vasquez v. Residential, Inc., supra, 118 Cal.App.4th at p. 279 [“what is reasonable will depend in each case on the particular circumstances facing that defendant considering the foreseeability of the risk of harm balanced against the extent of the burden of eliminating or mitigating that risk”].)
Vasquez v. Residential, Inc. provides guidance. There, a jealous boyfriend broke into his estranged girlfriend's apartment and killed her. (Id. at p. 274.) A glass pane on the top half of the front door was missing when the girlfriend and her family moved into the apartment, and although the girlfriend’s mother had asked the apartment manager to replace the missing pane, the manager had failed to do so. (Id. at p. 275.) The boyfriend entered the apartment by reaching through the space in the door where the glass pane should have been and unlocking the door from the inside. (Ibid.)
The court held that the defendant owners of the apartment building owed a duty to replace the missing windowpane because the burden involved in restoring the protections that an intact door would have provided was minimal when compared to the foreseeability that the lack of a glass pane would allow a criminal intruder to enter the apartment. (Id. at pp. 286-287.)
Here, there is evidence that the assailant may have accessed the Subject Building through the unsecured window. (Johnson Decl., ¶ 8, Exh. 12 [Bozzone Depo. at 21:17-22:11, 32:20-23].) There is also evidence that there were problems with the doors at the Subject Premises being left open or unlocked. (Johnson Decl., ¶¶ 9-13.) Finally, as noted above, there had been issues with trespassers and other criminal intruders at the Subject Premises. (Keith Decl. ¶ 22, Exh. G; Nulph Decl. ¶ 22, Exh. 22, Exh. G; Johnson Decl., ¶¶ 11-12.) Thus, it was foreseeable that failing to fix the doors and door locks that were not working properly, failing to secure the broken window, and failing to ensure that the security guards spent sufficient time checking the doors, would allow a criminal intruder to enter the Subject Premises. Moving Defendants thus owed a duty to Plaintiff.
Moving Defendants also contend that Plaintiff cannot establish the causation element of her negligence and premises liability claims because Gonzalez’s attack was a superseding cause of Plaintiff’s injuries.
Causation, however, is ordinarily a question of fact for the jury's determination. (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1463.) Similarly, “the issue of superseding cause is generally one of fact” unless “undisputed facts leave no room for a reasonable difference of opinion.” (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 19.)
Moving Defendants have not met their burden to show that there is no material dispute of fact and Moving Defendants are entitled to judgment in their favor on a superseding cause affirmative defense. There are material disputes of fact as at least two required elements for a finding of superseding cause: 1) that defendant did not know or foresee that the third party would act in a wrongful manner and 2) that the kind of harm resulting from the third party’s conduct was different form the kind of harm that could have been reasonably expected from defendant’s conduct. (See CACI 432.)
2nd Cause of Action (Negligent Supervision)
The second cause of action for negligent supervision alleges Moving Defendants breached their duty to Plaintiff by failing to adequately monitor and supervise Plaintiff’s workplace, failing to adequately monitor those responsible for the safety of Plaintiff in the workplace, and failing to adequately monitor those charged with the security of Plaintiff’s workplace. (TAC, ¶ 56.)
“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054, citation omitted.) To establish a right of recovery, a plaintiff must prove the traditional elements of actionable negligence. (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1371.)
For the reasons discussed above, Plaintiff has not met the heightened foreseeability showing required to impose upon Moving Defendants the burdensome duties of monitoring and supervising Plaintiff’s workplace, monitoring those responsible for the safety of Plaintiff in the workplace, and monitoring those charged with the security of Plaintiff’s workplace. Moving Defendants thus do not owe Plaintiff the duties alleged and summary adjudication must be granted as to the second cause of action.
3rd Cause of Action (Negligent Failure to Warn, Train, or Educate)
The third cause of action alleges prior to the night of the assault, Moving Defendants (as well as UBM and UPS) were aware of ongoing and existing security malfunctions and/or security breaches that had resulted in intruders gaining access into the Subject Premises and/or Subject Building and attacking other janitorial workers. (TAC, ¶ 59.)
However, the TAC does not allege that Moving Defendants (as opposed to UBM and UPS) owed any specific duties to Plaintiff or committed any specific tortious or wrongful acts. After making several allegations against UBM and UPS, the TAC concludes with a vague allegation that all of the defendants “not only demonstrated a conscious disregard for the safety of janitorial workers such as [Plaintiff], violated public policy, but placed their own monetary interests above of safety of janitorial workers such as [Plaintiff].” (TAC, ¶ 65.)
Even assuming that the TAC can be read to allege that Moving Defendants (as opposed to UBM and UPS) failed to warn, train, or educate Plaintiff, for the reasons explained above, Plaintiff has not shown the high level of foreseeability needed to impose upon Moving Defendants the burden of warning, training, or educating persons who were not their employees.
4th Cause of Action (Intentional Infliction of Emotional Distress)
To state a claim for intentional infliction of emotional distress, a plaintiff must establish: (1) extreme and outrageous conduct; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Extreme and outrageous conduct is a high bar. The behavior must “‘go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5, quoting Rest. 2d Torts, § 46, com. d; see Prosser, Law of Torts, supra., at pp. 46–47.)
The fourth cause of action alleges that prior to the night of the assault, Moving Defendants, UBM, and UPS were aware of ongoing and existing security malfunctions and/or security breaches that had resulted in intruders gaining access into the Subject Premises and/or Subject Building and attacking other janitorial workers. (TAC, ¶ 68.) The TAC further alleges Defendants placed their monetary interests above the safety of janitorial workers, by failing to provide a safe work environment and that Defendants knew or had reason to know that emotional distress would probably result from Defendants’ failure to create a safe work environment and failure to perform their hiring, retaining, training, and supervisory responsibilities with due care. (TAC, ¶¶ 74 & 78.)
These allegations are insufficient to state a claim for intentional infliction of emotional distress against Moving Defendants. Summary adjudication must be granted because the TAC fails to allege extreme and outrageous conduct on the part of Moving Defendants, or their intent to cause or their reckless disregard of the probability of causing emotional distress. (See Turner v. State of California (1991) 232 Cal.App.3d 883, 891 [“The pleadings delimit the issues to be considered on a motion for summary judgment.”], citation omitted; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264–1265 [“To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings.”], citations omitted.)
In any case, Plaintiff does not present evidence that Moving Defendants’ conduct or intent was sufficient to make out a claim for intentional infliction of emotional distress.
5th Cause of Action (Negligent Infliction of Emotional Distress)
“The
law
of negligent infliction of emotional distress in
California is typically analyzed . . . by reference to two ‘theories’ of
recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Burgess
v. Superior Court (1992) 2 Cal.4th 1064, 1071.) Under the bystander
theory, the plaintiff seeks to recover damages for serious emotional distress
suffered as a result of an injury to a close family member. Recovery is
limited as a matter of public policy to those cases where the plaintiff was
present at the scene of the injury-producing event and was aware that the
event was causing injury to the victim. (Id. at 1072–1073.)
In its decisions addressing the direct victim theory, the California Supreme Court has emphasized that “there is no independent tort of negligent infliction of emotional distress.” (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204, citations omitted.) Instead, “[n]egligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)
“[T]here is no duty to avoid negligently causing emotional distress to another . . .” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Thus, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Id. at p. 985, citations omitted.)
The factual allegations of the fifth cause of action are similar to those for the fourth cause of action. (TAC, ¶¶ 89 & 95.) Thus, it appears that Plaintiff seeks relief under a direct victim theory.
The court has determined that Moving Defendants owed Plaintiff a legal duty, sufficient to allow the negligence and premises liability causes of action to stand. Furthermore, Plaintiff has alleged and presented evidence that she suffered emotional distress as a result of the Moving Defendants’ alleged breach of the legal duty. Therefore, summary adjudication must be denied as to the fifth cause of action.
Moving Defendants shall give notice of this ruling.