CASE NAME: VARNES vs.? PEREZ
HEARING ON MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
FILED BY JESICA PEREZ
* TENTATIVE RULING: *
The motion of defendant Jesica Perez for summary judgment/adjudication is GRANTED as to both the complaint of plaintiff and the cross-complaint of Ryan Pellizzari.
Defendant Perez has met her initial burden on this motion.? She has presented sufficient evidence through the admissible portions of her declaration and the deposition of Mike Grim which, if uncontradicted, would show that an essential element of plaintiff?s theories of negligence and intentional tort cannot be established.? Kids? Universe v. In2Labs (20020) 95 Cal.App.4th 870, 878.? She has shown through these sources and ?factually devoid? discovery responses that plaintiff does not have and cannot obtain evidence that a dangerous condition of the property was a substantial factor in causing plaintiff?s injuries.? (See Exs. C ? E of Reinhardt Decl.; Ex. A to Reinhardt Decl., Grim Depo. at 29:17-30:18.)? Defendant Perez has not thwarted plaintiff from obtaining information during discovery.? Therefore, Krantz v. Bt Visual Images (2001) 89 Cal.App.4th 164, 174 is distinguishable.? Plaintiff has not demonstrated a legal reason why his memory loss will change the respective burdens of the parties on this motion or at trial.
Defendant Perez has no burden of showing anything as to claims not pled in the complaint (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1252) or claims pled in the complaint that are not sufficient as a matter of law.? Hansra v. Superior Court (1992) 7 Cal. App. 4th 630, 638-639.? Plaintiff should have made any motion to amend before the hearing on this motion.? Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1252.
The papers in support of and in opposition to this motion demonstrate that the cause of action for negligence has no merit.? The allegation that defendant ?negligently owned, maintained, managed [or] repaired . . . [her] home? is language of a cause of action for premises liability.? The court?s ruling concerning that cause of action is discussed below.? The allegation that defendant ?negligently . . . supervised and/or controlled . . . certain guests . . .? is legally insufficient to state a claim.? Plaintiff has not cited a case establishing that the owner of a private home hosting a party or social gathering has a general duty to one guest to supervise or control her other adult guests.? The complaint does not allege any facts to establish a special relationship that would impose such a duty. See Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224; Toland v. Sunland Housing Group, Inc. 18 Cal.4th253, 265, n.3; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 208-209.
Plaintiff has not shown that a factual issue exists regarding the allegation that defendant did anything to cause plaintiff ?to be . . . struck or physically attacked and to fall . . .?? All of the evidence submitted is that plaintiff did not strike plaintiff herself or ask anyone else to do so.? (See Ex. A to Reinhardt Decl., Grim Depo. at 31:5-14; 33:8-16; 33:21-25; 34:4-35:7.)
Assuming that an agency theory was properly pled and is therefore properly before the court, insufficient facts have been presented on which a reasonable trier of fact could conclude that Ryan Pellizzari was the agent of defendant Scully and the agent or sub-agent of defendant Perez.? While an agency may be created informally and implied by the conduct of the parties, it still requires ?conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter?s direction.?? Frank Pisano & Associates v. Taggart (1972) 29 Cal. App. 3d 1, 15.? ?The significant test of an agency relationship is the principal’s right to control the activities of the agent.?? Violette v. Shoup (1993) 16 Cal. App. 4th 611, 620.? The record is devoid of any conduct by Scully or Pellizzari manifesting acceptance of a relationship between Scully and Pellizzari for Pellizzari to prevent plaintiff from re-entering the premises under Scully?s direction and control.? (See Ex C to Wyle Decl., Grim Depo. at 100:11-12; 106:13-17.)? A third person?s offer of aid or rendering of aid is not sufficient to establish an agency relationship.? Violette v. Shoup, supra, 16 Cal.App.4th at 620; Edwards v. Freeman (1949) 34 Cal.2d 589, 591-592.? To hold otherwise would be to make every volunteer doing a favor or an act of kindness for someone else that person?s agent, and impose liability on the unknowing principal for actions the principal did not ask to be taken.? The only significant agency cases that defendant has cited involve attorneys acting for their client (and subsequent questions about the scope of their authority) (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638; Gaine v. Austin (1943) 58 Cal.App.2d 250) and a husband acting for his wife.? Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1.? Plaintiff has not cited a case like this, where the claim is that one friend appointed another to be the agent of the first when no words were spoken between them on the subject.
Further, the evidence here is insufficient to permit a reasonable trier of fact to conclude that an agency was created through subsequent ratification.? See C.C. ? 2307.? Plaintiff has not cited a case in which ratification was used to create an agency in a social setting where the purpose of the agency was something to be accomplished in seconds or minutes and the agency terminated immediately thereafter.? In order to hold someone liable through ratification, the alleged principal must have had a choice, and the opportunity, to do something other than ratify.? An employer upon learning of an incident of which he disapproves can fire the employee.? The alleged principal here had no means to avoid ratification, other than by the unpalatable choice of inviting an unwanted guest back into her home when she and Scully had every right to evict him.? She could not undo his injuries, as the recipient of an unfair advantage can return it.? All the cases cited by plaintiff involve business or commercial transactions.
Plaintiff?s argument that defendant Perez can be held liable because defendant Scully allowed Ryan Pellizzari to follow plaintiff outside fails.? It is based on the unstated premise that Scully had the right to prevent Pellizzari from going outside or a duty or right to compel Pellizzari to come back inside before the incident.? Plaintiff has not alleged or proven sufficient facts to impose on Scully the right or duty to control Pellizzari?s actions.? As a general rule one has no duty to control the conduct of another.? Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 933.
Duty is a question of law for the court.? Delgado, supra, 36 Cal.4th at 237.? Weighing all of the factors outlined by the California Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, 112, and subsequent cases, the court holds that defendant Perez did not owe a duty to plaintiff not to flirt with him so that plaintiff would not make a pass at her, so that defendant?s live-in boyfriend would not want to eject plaintiff from the party, so that a volunteer, Pellizzari would not strike plaintiff while attempting to prevent plaintiff from re-entering the premises.? If Perez did owe such a duty, no reasonable trier of fact could find that it was breached, because there is insufficient evidence for the trier of fact to find that Perez did flirt with plaintiff.? Neither plaintiff nor Perez can testify about this (see Opposition Brief at 1:9; Plaintiff?s Response to UMF 9), and the only witness who can, has denied seeing any such flirting.? (Ex. A to Reinhardt Decl., Grim Depo. at 79:7-9.)? It is not as though plaintiff has alleged that defendant drank and then operated a dangerous instrumentality.? He has alleged (but not proven) that defendant drank and then flirted.
Similarly, the court holds that defendant Perez, a private homeowner, did not owe a duty to plaintiff not to drink at a party she was hosting so she could observe and control the conduct of her adult guests.
In light of all the above, plaintiff?s claimed factual disputes are legally irrelevant.
The papers in support of and in opposition to this motion also demonstrate that the causes of action for intentional tort and premises liability lack merit.? There is insufficient evidence for a reasonable trier of fact to conclude that defendant Perez engaged in conduct intended, or reasonably certain, to cause a harmful or offensive touching of plaintiff.? See CACI 1300. The only people outside when the incident occurred were plaintiff, Pellizzari, and Grim.? (Ex. A to Reinhardt Decl., Grim Depo. at 33:21-25.)? There is also insufficient evidence for a reasonable trier of fact to conclude that a dangerous condition on Perez? property played any role in causing plaintiff?s injuries.? (Id., at 29:17-30:18; Exs. C ? E to Reinhardt Decl.)
Plaintiff has not made a proper request for a continuance under CCP ? 437c (h).? A request for a continuance must be supported by a declaration showing (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.? Lerma v. County of Orange (2004) 120 Cal. App. 4th 709, 715.? Plaintiff has not submitted such a declaration.
?
Rulings on evidentiary objections:
Plaintiff?s Objections:
1 ? Motion to strike granted in part.? The words ?Throughout the evening . . . Shawn [Scully] and his invited guests remained inside the house watching TV and playing board games . . .? are stricken.? Perez testified that while she and her guests were outside drinking on the back deck she did not get an opportunity to observe what people were doing inside the house.? (Ex. A to Wyle Decl., Perez Depo. at 41:9-12.)
2 ? Motion to strike granted.? No personal knowledge.? Perez Depo. at 50:7-22; 52:12-14; 59:25-60:4
3 ? Overruled/denied up to the time identified in the deposition at 106:17-21.? Motion to strike granted as to any time after that.
4 ? Motion to strike granted.? See Perez Depo. at 50:19-21; 101:1-6.
5 ? Motion to strike granted except as to the words ?I did not learn of this altercation until after it occurred.?? Perez Depo. at 101:8-102:11.
6 ? Overruled/denied.
7 ? Motion to strike granted except as to the words ?I . . . was unaware of any preexisting tension between Plaintiff Mark Varnes and Ryan Pellizzari? to the extent the witness is speaking of tension before the time when she began to feel drunk.?? Perez Depo. at 103:5-104:1; 104:16-24.
8 – Overruled/denied.
9 – Overruled/denied up to the time identified in the deposition at 105:17-11-18.? Motion to strike granted as to any time after that.
10 ? Overruled/denied.
11 ? Overruled.? As previously noted by the court, what matters from the standpoint of an evidentiary objection is what the deposition testimony says, not how the Separate Statement describes it.
12 ? Overruled.
13 ? Overruled as to 20:19-21:20.? People v. Williams (1988) 44 Cal. 3d 883, 914.
Sustained as to 23:5-14 (hearsay)
Sustained as to ?Nobody inside wanted the people outside there because? (hearsay); overruled as to the rest of 73:12-15
Overruled as to 85:3-13.
14 ? Overruled as to 79:7-9
Overruled as to 82:16-19
Sustained as to 82:20-83:1 (hearsay).
15 ? Overruled.
16 ? Sustained (hearsay).
17 ? Sustained (hearsay).
18 ? Overruled.
19 ? Overruled.
20 ? Overruled.
21 ? Overruled.
22 ? Overruled.
23 ? Overruled as to everything but 159:5-6 (inadmissible opinion).
24 ? The objection reads that the evidence being objected to is page 4 of the Sheriff?s Report.? All paragraph references that follow refer to the paragraphs on that page.
Overruled as to paragraph 1-3; sustained as to paragraph 4 (relevance); overruled as to paragraph 5-7.
The court does not see a reference on page 4 of the Report to a conclusion by the officer that Pellizzari was acting in self-defense.? On its own motion, the court rules that it will not consider such an opinion in ruling on this motion for summary judgment, wherever it appears in the Report.? (See paragraph 6 on page 7 of the report).? Waller v. Southern California Gas Co. (1959) 170 Cal.App.2d 747, 754-755.