Lilly Teisher vs Steven R Andrade et al

Case Number

23CV04374

Case Type

Hearing Date / Time

Fri, 04/26/2024 - 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 first amended complaint of plaintiff is sustained with leave to amend. Plaintiff shall file and serve a second amended complaint, if any, on or before May 6, 2024.

Background: 

The first amended complaint (FAC) filed by plaintiff Lilly Teisher in this matter on December 22, 2023, is the operative pleading. As alleged in the FAC:

Defendant Sigma Nu, Kappa Eta Chapter (Kappa Eta) is a branch of defendant Sigma Nu Fraternity, Inc. (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). (FAC, ¶¶ 2, 6, 9, 10, 24.) The fraternity house is owned by defendants Steven R. Andrade (Andrade) and Andrade LLC (Andrade LLC) (collectively, the Andrade defendants). (Id. at ¶¶ 3, 6, 7.)

UCSB oversees, manages, and provides a written agreement of requirements for recognition and administration of fraternities and sororities at its campus. (FAC, ¶ 26.) The agreement requires fraternities to abide by specific policies. (Ibid.) In addition, UCSB encourages and promotes fraternity housing as part of campus life so that UCSB can meet its requirement to provide adequate housing. (Id. at ¶ 28.)

After the death of a member of Kappa Eta, Regents and Sigma Nu National placed Kappa Eta on suspension through May 12, 2022. (FAC, ¶ 33.) Under the terms of the suspension, Kappa Eta was prohibited from hosting events or parties. (Id. at ¶ 34.) Regents closely monitored members of Kappa Eta to ensure that no events or parties were being held. (Id. at ¶ 34.) Though Regents knew that Kappa Eta and its members continued to operate the fraternity house in violation of the suspension, and to host parties with Sigma Nu letters in full view of the public, Regents failed to issue sanctions or stop the parties at the fraternity house. (Id. at ¶¶ 2, 38.)

Regents was also aware that “Deltopia”, which is a beach party known to create unsafe situations, occurred at the start of every spring quarter in the Isla Vista neighborhood near UCSB. (FAC, ¶¶ 19, 20, 23, 25.) Regents knew that the Deltopia event posed a serious risk of underage drinking, injury, and death to students at UCSB and other individuals attending the event. (Id. at ¶ 25.) Regents never took steps to prevent, monitor, or make safer the Deltopia event. (Ibid.) Rather, Regents encouraged and benefited from Deltopia and allowed Deltopia events to occur at UCSB facilities. (Ibid.)

Members of Kappa Eta living at the fraternity house constructed a makeshift wooden “step” which allowed party goers to step from a bedroom on the second story and party on the roof below. (FAC, ¶ 3.) On April 2, 2022, while attending an annual “Deltopia” party at the fraternity house, plaintiff fell from the wooden step and struck her head suffering a traumatic brain injury. (Id. at ¶¶ 4, 23.)

Plaintiff alleges six causes of action: (1) negligence – premises liability (against Andrade LLC); (2) negligence – premises liability (against Andrade); (3) negligence – premises liability (against Kappa Eta and Sigma Nu National); (4) negligent undertaking (against Sigma Nu National); (5) negligent undertaking (against Regents); (6) dangerous condition of public property (against Regents.)

On January 30, 2024, the Andrade defendants filed their answer to the FAC generally denying its allegations and asserting twenty-two affirmative defenses.

On February 16, 2024, Sigma Nu Fraternity filed an answer to the FAC generally denying its allegations and asserting sixteen affirmative defenses.

On April 17, 2024, plaintiff filed a request for dismissal without prejudice as to defendant Kappa Eta only.

On February 13, 2024, Regents filed a demurrer to the fifth and sixth causes of action alleged in the FAC on the grounds that plaintiff has failed to allege facts sufficient to constitute a cause of action for negligent undertaking or for dangerous condition of public property. Plaintiff opposes the demurrer.

Analysis:

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Fifth cause of action for negligent undertaking:

As grounds for its demurrer to the fifth cause of action for negligent undertaking alleged in the FAC, Regents contends that plaintiff has failed to allege a statutory basis to pursue a claim against Regents. For this reason, Regents contends, plaintiff has failed to allege facts sufficient to constitute a cause of action for negligent undertaking.

In the FAC, plaintiff alleges that Regents is a public entity under Government Code section 811.2. (FAC, 11.) “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. (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.) “To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant’s failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking.” (Id. at pp. 83-84.) A negligent undertaking theory requires “proof of each of the well-known elements of any negligence cause of action, viz., duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.)

The theory of liability asserted by plaintiff in the fifth cause of action arises from allegations that Regents undertook to protect UCSB students, including plaintiff, from Kappa Eta by implementing supervision and monitoring protocols to ensure Kappa Eta was not engaging in social activities and violating the terms of its suspension. (FAC, ¶¶ 73-74.) Plaintiff further alleges that these services were of a kind that Regents should have recognized as necessary for the protection of plaintiff. (Id. at ¶ 75.) Plaintiff also asserts that Regents knew that Kappa Eta was conducting activities, including parties, and failed to take any steps to further sanction Kappa Eta or the residents of the fraternity house. (Id. at ¶ 76.) For these reasons, plaintiff alleges, Regents failed to exercise reasonable care in the performance of its undertaking resulting in physical harm, or increasing the risk of harm, to plaintiff. (Id. at ¶¶ 76-78.)

Giving the allegations of the FAC a reasonable interpretation, the theory of liability alleged in the fifth cause of action is based in tort and does not arise from a statute authorizing the liability of Regents or creating a specific duty of care owed by Regents. For all reasons discussed above, plaintiff cannot impose tort liability on Regents absent a statutory basis. For this reason, the FAC does not state facts sufficient to constitute a cause of action for negligent undertaking against Regents.

In the opposition to the demurrer, plaintiff contends that under Government Code sections 820 and 815.2, public employees are liable for torts committed in the course and scope of their employment. “[T]he [Act] provides that public employees are liable for their acts and omissions ‘to the same extent as a private person’ [citation], and public entity employers are vicariously liable for employees’ negligent acts within the scope of their employment to the same extent as private employers [citations].” (Regents, supra, 4 Cal.5th at p. 619; see also Gov. Code, §§ 815, subd. (a); 820, subd. (a).)

Though plaintiff contends in her opposition that the “administration at UCSB” committed torts for which the Regents may ultimately be liable (see Opp. at p. 4. ll. 21-22), wholly absent from the FAC are allegations demonstrating any specific negligent acts or omissions by any employees or administrators of Regents which caused plaintiff’s injuries or that any employees or administrators of Regents were acting within the scope of their employment with respect to the alleged injury-producing acts or omissions, among other things. Rather, the FAC includes only general and conclusory allegations regarding “UCSB” promoting fraternity housing and Regents placing Kappa Eta on suspension status and monitoring and supervising Kappa Eta during its suspension. Though plaintiff is not required at the pleading stage to identify specific employees or administrators whose allegedly negligent acts or omissions caused plaintiff’s injuries, plaintiff must allege facts sufficient to state a cause of action against Regents based on the provisions of Government Code sections 815.2 and 820, subdivisions (a).

Moreover, the court is unable to determine from the face of the FAC whether Regents had personnel whose responsibilities included suspending, supervising, or monitoring Kappa Eta as alleged in the FAC, or what duties were encompassed by those responsibilities. (See, e.g., C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [describing allegations which were sufficient to plead a public entity employee’s negligence under ].) For this additional reason, the court is unable to conclude that the allegations of the FAC are sufficient to demonstrate a breach of a duty of care by any employees or administrators of Regents or whether the injury producing acts were foreseeable. (See, e.g., Regents, supra, 4 Cal.5th at p. 627 [discussing the duty to use reasonable care to protect college students from foreseeable acts in the classroom or during curricular activities]; K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 755-757 [pleading must adequately allege the elements of the tort against the public entity’s employees].)

The examples provided above are intended to be illustrative but not exhaustive. Though the court cannot offer an advisory opinion describing what, if any, allegations would be sufficient, the allegations of the FAC presently fail to state a cause of action against Regents for the tort of negligent undertaking. Therefore, the court will sustain the demurrer of Regents to the fifth cause of action alleged in the FAC.

Sixth cause of action for dangerous condition of public property:

In the sixth cause of action, plaintiff asserts that Regents “managed and controlled” the fraternity house “via its ability to sanction Kappa Eta [] and its members who were tenants there”, that the fraternity house was in a dangerous condition at the time of plaintiff’s injuries, that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred, and that the employees of Regents “acting within the scope of employment” created the dangerous condition and that Regents had notice of the existence of the dangerous condition “for a long enough time to have protected against it.” (FAC, ¶¶ 80-83.) Giving the FAC a reasonable interpretation, plaintiff asserts that the “dangerous condition” consists of the wooden step constructed by Kappa Eta which was used by Kappa Eta, and plaintiff, to access a roof during parties at the fraternity house. (Id. at ¶ 81.)

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 are insufficient to demonstrate that Regents owned, maintained, or controlled the fraternity house itself. Because the allegations are insufficient to show that Regents owned 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 allegations that plaintiff contends are sufficient to demonstrate that Regents owns or controls the fraternity house include that Regents provides a written agreement requiring fraternities to abide by certain risk management and prevention policies, that UCSB requires fraternity facilities to pass code requirements set forth by the Fire Marshall, that UCSB encourages housing in fraternities, and that Regents undertook to monitor and prevent prohibited activities by Kappa Eta, including the hosting of parties by Kappa Eta.

Pursuant to Government Code section 835, “[e]xcept 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) [t]he 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; see also Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 68.)

“The Act defines “public property” and the “property of a public entity” as “real or personal property owned or controlled by the public entity, but … not … easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.” (Gov. Code, § 830, subd. (c).) To establish liability for a dangerous condition of public property, the allegations of the FAC 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 FAC). (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 FAC as further discussed above demonstrate that the Andrade defendants own the fraternity house, the relevant inquiry for present purposes is whether plaintiff has alleged facts sufficient to demonstrate that Regents otherwise controlled the fraternity house. For present purposes, plaintiff has not done so.

For example, notwithstanding Regents’ power to suspend or monitor the social activities of Kappa Eta, the allegations of the FAC do not show that Regents had undertaken to inspect or maintain the fraternity house in connection with the suspension or monitoring of Kappa Eta or with respect to any code violations or defects. The allegations also do not show, for example, that Regents and the Andrade defendants were parties to a contractual agreement or other arrangement under which Regents had, at the time plaintiff sustained her injuries, the authority to inspect, maintain, or repair the fraternity house or to function as its landlord or property manager. The allegations of the FAC are also insufficient to demonstrate that the Andrade defendants relinquished any right of ownership or control over the fraternity house to Regents.

Moreover, even if the allegations of the FAC 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 (and the court presently finds that the allegations are not sufficient in this regard), 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 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 FAC, ¶ 29 [alleging that the wooden step was attached to the back of the fraternity house].) In addition, plaintiff has not alleged facts showing that there existed some feature in the physical condition of the fraternity house that exposed its users to increased danger from negligence by a third party. (See, e.g., Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348.)

The examples offered above are intended to be illustrative but not exhaustive, and the court does not intend to suggest what allegations may be sufficient. For all reasons further discussed above, plaintiff has 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 FAC.

Leave to amend:

Plaintiff bears the burden to show a reasonable possibility that the defects discussed herein can be cured by amendment to the FAC. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In the opposition to the demurrer, plaintiff requests that, in the event the court has any doubt about the adequacy of the allegations of the FAC, the court grant leave to amend. However, plaintiff fails to offer any reasoned argument demonstrating in what manner the FAC may be amended to cure the deficiencies discussed herein.

Though plaintiff has failed to show the manner in which the defects discussed above can be cured, the FAC does not necessarily show on its face that it is incapable of amendment. Though the court questions whether the FAC may be truthfully amended to state causes of action for negligent undertaking and dangerous condition of public property against Regents, and notwithstanding that plaintiff has not met her burden to demonstrate that the defects can be cured by amendment, as the FAC is, for present purposes, effectively an original pleading, the court will grant plaintiff leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.) Plaintiff may amend the fifth and sixth causes of action as authorized herein. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)