Case Number
23CV04374
Case Type
Civil Law & Motion
Hearing Date / Time
Fri, 08/30/2024 - 10:00
Nature of Proceedings
Demurrer
Tentative Ruling
For all reasons discussed herein, the demurrer of defendant the Regents of the University of California to the fifth and sixth causes of action alleged in the second amended complaint of plaintiff is sustained without leave to amend. The complaint is dismissed as to Regents of the University of California.
Background:
This action commenced on October 4, 2023, by the filing of the original complaint by plaintiff Lilly Teisher (“plaintiff”) against defendants Andrade Investments, LLC, Steven R. Andrade, Sigma Nu Fraternity (“Sigma Nu National”), Sigma Nu Kappa Eta Chapter (“Kappa Eta”), and Regents of the University of California (“Regents”).
Plaintiff filed her first amended complaint (“FAC”) on December 22, 2023, and UCSB demurred to the fifth cause of action for Negligent Undertaking and the sixth cause of action for Dangerous Condition of Public Property.
On April 26, 2024, the demurrer of UCSB to the fifth and sixth causes of action was sustained with leave to amend.
On May 6, 2024, plaintiff filed the operative second amended complaint (“SAC”), setting forth the same six causes of action. Those causes of action are: (1) Negligence - Premises Liability as to Andrade Investments; (2) Negligence - Premises Liability as to Steven Andrade; (3) Negligence - Premises Liability as to Kappa Eta and Sigma Nu National; (4) Negligent Undertaking as to Sigma Nu National; (5) Negligent Undertaking as to Regents; and (6) Dangerous Condition of Public Property as to Regents.
The basic facts of the SAC are similar to those alleged in the FAC, but plaintiff has added some additional allegations. As alleged:
Defendant Kappa Eta is a branch of defendant Sigma Nu National that operates a fraternity house located at 6587 Del Playa Drive in Goleta, California (the fraternity house), less than two miles from the campus of the University of California, Santa Barbara (“UCSB”). (SAC, ¶¶ 9, 30.) The fraternity house is owned by defendants Steven R. Andrade and Andrade Investments (collectively, the Andrade defendants). (Id. at ¶¶ 3, 6, 7, 30.)
“Every Spring since 2004, a beach party known as ‘Deltopia’ takes place in the streets of Isla Vista, involving massive crowds of college students and day-drinking events. Deltopia was originated by [UCSB} students and occurs at the start of UCSB’s spring quarter around Del Playa Drive. The event centers around Del Playa Drive. Each year, Deltopia attracts more attendees, sometimes as many as 25,000. Historically, the event has seen numerous arrests and injuries causing local authorities to allocate more resources in response. Defendant UC Regents was aware that Deltopia occurred every year. Defendant UC Regents was aware that the event posed a serious risk of underage drinking, injury, and death to UCSB students and other individuals attending the event. Despite its knowledge, Defendant UC Regents never took any steps to prevent the event, monitor the event, or make the event safer. To the contrary, Defendant UC Regents actively encouraged and benefited from Deltopia and allowed various Deltopia events to occur at UCSB facilities, both before and after Plaintiff was injured. In fact, UCSB has a historical and ongoing campus culture issue that promotes partying, overconsumption of alcohol, and drug use, that results in a dangerous condition to students and visitors. Rather than take measures to prevent this campus culture, UCSB promotes and encourages the culture to increase its admission applicants.” (SAC, ¶ 20.)
“UCSB provides restrictions on Deltopia events including ‘Any party or gathering that violates the county outdoor festival and social host ordinance, which prohibits paid entry, alcohol sales, attendance above 250 people and allowing people in rooftops or cliffs, among other things, will be shut down by law enforcement.’ During Deltopia, UCSB Campus Police coordinate efforts with local law enforcement to patrol, monitor, and enforce these regulations and safety at Deltopia events on and off campus in Isla Vista and Goleta neighborhoods.” (SAC, ¶ 22.)
“Deltopia is well-known to create unsafe situations. In April 2013, a student from Cal Poly traveled to Deltopia to participate in the event and was found dead on the beach after engaging in Deltopia activities. On April 6, 2013, four UCSB students were hospitalized when a balcony at 6643 Del Playa Drive collapsed. On April 2, 2022, the annual Deltopia event took place and following the pattern of students being injured in prior years, [plaintiff] was injured in connection with the event.” (SAC, ¶ 25.)
“A makeshift wooden ‘step’ and ‘handle’ are attached to the back of the [fraternity] house, allowing someone to dangerously climb out of the window to access the roof below. This step is visible from the back of the house; the wood used for this step contrasts with the light gray of the house’s paint color and protrudes out.” (SAC, ¶ 32; italics added.)
On April 2, 2022, plaintiff attended a Deltopia event at the fraternity house that was hosted by Kappa Eta. (SAC, ¶ 44.) At around 1:00 p.m., plaintiff attempted to use the makeshift step to gain access to the roof and fell over ten feet to the concrete ground, striking her head and sustaining serious injuries. (SAC, ¶ 45.)
Other specific allegations will be discussed below where relevant.
Regents again demur to the fifth and sixth causes of action.
Plaintiff opposes the demurrer.
Analysis:
“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)
“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
Fifth cause of action for negligent undertaking:
In the SAC, plaintiff alleges that Regents is a public entity under Government Code section 811.2. (SAC, 11.)
“Except as otherwise provided by statute:
“(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
“(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.” (Gov. Code, § 815.)
“Because [Regents] is a public entity, its exposure to tort liability is nominally defined by statute. [Citations.]” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents); see also Gov. Code, § 815, subd. (a).) Under Government Code section 810 et seq. (the Government Claims Act or Act), “a tort action cannot be maintained against a government entity unless the claim is premised on a statute providing for that liability.” (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 652.)
The negligent undertaking doctrine is an exception to the rule that, in general, there is no duty to act to protect others from the conduct of third parties. “[L]iability [for negligent undertaking] depends on whether: (a) defendants’ failure to exercise reasonable care increased the risk of physical harm to the third person; or (b) defendants undertook to perform a duty the other owed to the third person; or (c) the harm was suffered because the other or the third person relied on defendants’ undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 560.)
“ ‘As the traditional theory is articulated in the Restatement, a negligent undertaking claim of liability to third parties requires evidence that: (1) the actor . . . undertook, gratuitously or for consideration, to render services to another . . .; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons . . .; (3) the actor failed to exercise reasonable care in the performance of its undertaking; (4) the failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) the harm was suffered because of the reliance of the other or the third persons upon the undertaking.’ ” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 688.)
In her SAC, plaintiff alleges liability against Regents pursuant to Government Code sections 820 and 815.2. (SAC, ¶ 76.)
Government Code section 820 provides:
“(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
“(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.”
Government Code section 820.2 provides:
“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
Government Code section 815.2 provides:
“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
Here, plaintiff alleges that Regents undertook to render services to another. The allegation is that: “UC Regents undertook, gratuitously or for consideration, to render services to UCSB students, including [plaintiff], to protect students from Kappa Eta Chapter.” (SAC, ¶ 78.) According to plaintiff, the undertaking is the result of several actions taken by Regents, including: (1) actively encouraging Deltopia and allowing various Deltopia events to occur at UCSB facilities. (SAC, ¶ 20.); (2) the UCSB Major Events Committee approves planned events by fraternities. (SAC, ¶ 21.); (3) UCSB restricts Deltopia events by, among other things, prohibiting paid entry, alcohol sales, attendance above 250 people, and allowing people on rooftops or cliffs. (SAC, ¶ 22.); and (4) UCSB contracts with, oversees, governs, and manages fraternities and provide written agreements and guidelines that fraternities must abide by, and which include rules regarding alcohol use, sober party monitors, and compliance with various codes. (SAC, ¶ 28.)
Plaintiff alleges that Regents’ failure to exercise reasonable care in the undertaking increased the risk of harm and that plaintiff believed that, because it was considered an extension of campus, the fraternity house would be maintained in a safe manner. (SAC, ¶ 88.)
Among other arguments, Regents argues that plaintiff has failed to allege facts establishing that Regents owed a duty to plaintiff. In support, Regents cites University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429 (USC).
USC involved an action where a 19-year-old student, Barenborg, was attending fraternity parties and had consumed cocaine and five to seven alcoholic beverages before arriving at a party at Cal. Gamma, where she continued drinking alcohol. Barenborg was bumped off a platform that was being used for dancing and sustained serious injuries. The platform was in the backyard of the fraternity house. In that case, USC maintained policies similar to those present in this case. “USC’s policy on alcohol and other drugs required fraternities and sororities to obtain prior authorization to serve alcohol at social events. USC’s social events policy prohibited parties after 10:00 p.m. on evenings preceding school days, and allowed parties only between Fridays at 3:00 p.m. and Sundays at 5:00 p.m. Cal. Gamma’s party on Thursday, October 10, 2013, was unauthorized and violated both of these policies. USC was aware of prior violations of university policy and other misconduct at Cal. Gamma, some involving the use of alcohol, and had recently issued warning and imposed discipline on the fraternity.” “USC’s Department of Public Safety (DPS) employed safety officers who patrolled the USC campus and Greek Row. On October 10, 2013, before Barenborg’s injury, two DPS officers visited Cal. Gama several times in response to complaints of loud music and public drinking. On each visit, they saw an abundance of alcohol on the property. They asked the person in charge at Cal. Gamma to turn down the music and reminded him that public drinking was not allowed, but they did not shut down the party.” (Id. at pp. 436-437.)
The plaintiff in USC argued substantially what plaintiff in this case argues regarding liability: “USC owed her a duty of care because (1) USC had a special relationship with its students and their invitees; (2) USC voluntarily assumed a duty to supervise behavior on and around campus, including at fraternity houses on Greek Row, USC increased the risk of harm by failing to shut down the Cal. Gamma party, and Barenborg relied on USC to ensure a safe environment; and (3) USC had the right to control the Cal. Gamma property and therefore owed a duty of care to Barenborg as a social invitee under principles of premises liability.” (Id. at p. 438.)
The USC court rejected plaintiff’s arguments regarding USC owing plaintiff a duty.
“ ‘The determination whether a particular relationship supports a duty of care rests on policy and is a question of law. [Citation.]’ ” [Citation.]” (Id. at p. 439.)
As a general rule, each person has a duty to exercise reasonable care to avoid causing injury to others. [Citations.] However, 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. [Citation.]” (Id. at p. 440.)
“Colleges once were regarded as standing in loco parentis to students, resulting in both an obligation to protect students and some degree of immunity from suit by students. Later, when social changes led to greater privacy and autonomy rights for adult students, courts generally treated colleges as “ ‘bystanders’ ” with a limited duty to students arising from a business relationship, but no broader duty based on a special relationship. [Citation.] “ ‘While the university might owe a duty as a landowner to maintain a safe premises, courts typically resisted finding a broader duty based on a special relationship with students. [Citation.] This was particularly so when injuries resulted from alcohol consumption or fraternity activity. [Citation.]’ ” [Citation.]” (Id. at p. 441.)
“ ‘The special relationship we now recognize . . . extends to activities that are tied to the school’s curriculum but not to student behavior over which the university has no significant degree of control.’ ” (Id. at p. 443.)
“Barenborg argues that USC had a special relationship with Cal. Gamma and its members because USC had the ability to control the fraternity by enforcing the university’s policies regarding alcohol use and social events. She notes that one of the stated goals of USC’s policies was to protect the campus community, including invitees to Greek Row.” (Id. at p. 447.)
“ ‘[M]any aspects of a modern college student’s life are, quite properly, beyond the institution’s control. Colleges generally have little say in how students behave off campus, or in their social activities unrelated to school. It would be unrealistic for students to rely on their college for protection in these settings, and the college would often be unable to provide it.’ ” [Citation.]” (Ibid.)
“[W]e conclude that by adopting policies regarding alcohol use and social events and providing a security patrol both on and off campus, USC did not assume a duty to protect invitees from third-party conduct at fraternity parties. Again, a college has little control over such noncurricular, off campus activities, and it would be unrealistic for students and their guests to rely on the college for protection in those settings.” (Id. at p. 449.)
“Moreover, the evidence here cannot support an inference that USC’s conduct increased the risk of harm to Barenborg. By establishing policies governing fraternities, providing a security patrol with authority to enforce those policies both on and off campus, and failing to enforce those policies by shutting down the Cal. Gamma party after it began or preventing the party from occurring in the first place, USC did not create any new peril. USC’s failure to prevent or curtail the party allowed the party to occur and continue, but neither created the party nor increased the risks inherent in the party.” (Id. at p. 450.)
USC is directly on point and plaintiff’s attempts to distinguish the case from the present facts is unpersuasive. Even if Regents had assumed an undertaking, there are no facts alleged in the complaint that could possibly infer a duty owed to plaintiff as a result of the undertaking. Further, there are no allegations that could infer that Regents increased any risk of harm or that plaintiff reasonably relied on Regents to protect her from harm. As in USC, there is no indication that plaintiff’s awareness of the Regents’ policies caused her to behave any differently. (Ibid.)
There are a couple of other quotes from USC that are worthy of mention. “It is not uncommon for college students drinking alcohol at a fraternity party to behave in a manner that is careless and threatens injury to themselves or others. The possibility of injury at such a party unrestrained by sensible rules and enforcement is reasonably foreseeable.” (Id. at p. 452.) “Moreover, finding a duty in these circ*mstances could create a disincentive for universities to regulate alcohol use and social activities and provide security patrols, which to some degree could frustrate the policy of preventing future harm.” (Id. at p.p. 454-455.)
Because plaintiff has failed to allege facts from which any duty, under the theory of negligent undertaking, could be inferred, the SAC fails to state facts sufficient to constitute a cause of action. Plaintiff bears the burden to show a reasonable possibility that the defects discussed herein can be cured by amendment to the SAC. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) As plaintiff has not demonstrated how she could amend the complaint to state a valid cause of action for negligent undertaking (for the second time), and there is no reasonable probability that she can do so, the demurrer to the fifth cause of action will be sustained without leave to amend.
Sixth cause of action for dangerous condition of public property:
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)
“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
“(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
“(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
“(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” (Gov. Code, § 835.2.)
The elements for dangerous condition of public property are: “ ‘(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff’s injuries; and (5) compensable damage sustained by the plaintiff.’ ” [Citation.]” (Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 925-926.)
Regents contends that because it does not own or control the fraternity house, it cannot be liable for any dangerous condition at the fraternity house. Regents further argues that its ability to manage or control the residents of the fraternity house by sanctioning members of Kappa Eta who lived there is insufficient to demonstrate that Regents owned, maintained, or controlled the fraternity house itself. Because the allegations of the SAC are insufficient to show that Regents owned, controlled, or managed the fraternity house, Regents argues, plaintiff has failed to allege facts sufficient to constitute a cause of action for dangerous condition of public property.
The SAC does not overcome the deficiencies, as to the sixth cause of action, that were discussed in the ruling on the demurrer to plaintiff’s FAC. The analysis and outcome are the same.
To establish liability for a dangerous condition of public property, the allegations of the SAC must be sufficient to show that the property at issue is owned by Regents, or that Regents retained sufficient control over the property such that it had the “power to prevent, remedy or guard against the dangerous condition” (here, the wooden step as alleged in the SAC). (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 988; Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.)
As the express allegations of the SAC demonstrate, as did the allegations of the FAC, the Andrade defendants own the fraternity house. As such, the relevant inquiry for present purposes is whether plaintiff has alleged facts sufficient to demonstrate that Regents otherwise controlled the fraternity house. Plaintiff has not done so.
The allegations that plaintiff contends are sufficient to demonstrate that Regents owns or controls the fraternity house include allegations that Regents “managed and controlled” the fraternity house “through its policies and procedures and its ability to sanction Kappa Eta Chapter and its members who were tenants there” (SAC, ¶ 90), that Regents “controls property leased by UCSB-recognized fraternities and is required to ensure these properties are safe for student use or at least warn of dangerous conditions and criminal activity at these properties” (SAC, ¶ 91), that Regents “through its administration and employees acting as members of its RCOCB maintains significant control and oversight of fraternities, including Kappa Eta Chapter through its agreement and risk management and prevention policies . . . (SAC, ¶ 930, and that Regents “failed to properly enforce its policies, procedures, and restrictions against Kappa Eta Chapter.” (SAC, ¶ 96.)
USC is instructive in this regard as well: “Although USC’s policies governing use of alcohol and social events applied to SAE, those policies, along with DPS patrols to enforce those policies, did not constitute an exercise of control over the property.” (USC, supra, 30 Cal.App.5th at 446.) The same is true of the present case. The policies in place do not constitute an exercise of control over the fraternity house.
Moreover, even if the allegations of the SAC were sufficient to show that the existence of the wooden step used to access the roof at the fraternity house constitutes a dangerous condition of property owned or controlled by Regents, which they are not, plaintiff has alleged no facts demonstrating that Regents had sufficient notice of the dangerous condition. (Grossman v. Santa Monica-Malibu Unified School Dist. (2019) 33 Cal.App.5th 458, 466.) For example, there are no substantive allegations demonstrating that, notwithstanding any monitoring of Kappa Eta by Regents, Regents was under a duty to or did inspect the fraternity house, or that any required inspection would have disclosed that the wooden step was being used by Kappa Eta or other students to access the roof below. (See Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519-520 [also noting that “a defect is not obvious just because it is visible]; see also SAC, ¶ 32 [alleging that the wooden step was attached to the back of the fraternity house].)
Plaintiff has again failed to allege sufficient facts demonstrating that Regents owned or controlled the fraternity house. Therefore, the court will sustain the demurrer of Regents to the sixth cause of action alleged in the SAC because it fails to state facts sufficient to constitute a cause of action. As plaintiff has not demonstrated how she could amend the complaint to state a valid cause of action for dangerous condition of public property (for the second time), and there is no reasonable probability that she can do so, the demurrer to the sixth cause of action will be sustained without leave to amend.
As the demurrer will be sustained without leave to amend, as to the sole two causes of action against Regents, the SAC will be dismissed as to Regents.
