Opinion
A155221
10-29-2019
COURTNEY TERRELL TALLEY, Cross-complainant and Appellant, v. RANETTE LIZARDO, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG17852106)
Cross-complainant and appellant Courtney Terrell Talley appeals after the trial court granted the motion for summary judgment filed by cross-defendant and respondent Ranette Lizardo in this action arising from two physical altercations between Talley and a third person, Alfred Hardwick. On appeal, Talley contends the court erred when it granted Lizardo's summary judgment motion because it improperly ignored or weighed the evidence and because there are triable issues of material fact regarding whether Lizardo was negligent during Hardwick's alleged battery against Talley, whether Talley suffered serious or severe emotional distress as a result of Lizardo's negligence, and whether Lizardo aided and abetted Hardwick in an assault and/or battery on Talley. He also asserts that the court should not have considered Lizardo's motion because the parties did not first stipulate to the court hearing it. We shall affirm the judgment.
Hardwick, who is not a party to this appeal, filed the original action in this matter against Talley, who then filed a cross-complaint against both Hardwick and Lizardo.
FACTUAL AND PROCEDURAL BACKGROUND
The undisputed evidence submitted in the trial court includes the following. Lizardo and Talley were married in 2014. On April 1, 2016, Talley went to Hardwick's home in Vacaville after receiving a text message stating that Lizardo would be at that address. Talley parked near the house and, after seeing Lizardo's BMW automobile parked in the driveway, went to the front door and rang the doorbell. When no one answered the door, he went back to his car and waited there. Eventually, Lizardo and Hardwick exited Hardwick's house and went to the BMW. Talley approached, bear-hugged Hardwick from behind, and threw him onto the ground. Hardwick picked up a rock and approached Talley.
Lizardo got in between the two men, grabbed Talley's hand, and pleaded, "let's go." Talley interpreted this to mean, " 'let's get out of here.' " She continued to say "let's go" to him throughout the incident. Talley and Hardwick backed away from each other, and then ended up in the street, while Lizardo remained in the driveway, "screaming and yelling" at them to "[s]top it." She did not provoke Hardwick to fight with Talley.
Hardwick hit Talley in the mouth after which Talley said, "I have something for your ass." Hardwick then started running toward his house, and Lizardo, who had come into the street after Hardwick hit Talley, said, " 'He's got a gun.' " Talley understood this to mean that she believed that Hardwick was going to retrieve a gun and was warning Talley about it. Talley instructed Lizardo to get into her car and said, "let's go." He then got into his car, and they both drove home. Lizardo moved out of the home she shared with Talley about one month after this incident.
Approximately 11 months later, on March 4, 2017, another incident took place at a nightclub in San Jose during a birthday celebration for a man named Andrew. Talley, who learned about the party on Instagram, arrived at the nightclub and greeted Andrew. Talley then saw Hardwick and Lizardo on the dance floor. He approached Lizardo, but never made contact with her because she walked out a door onto a back patio. Instead, he came into contact with Hardwick. He put his right hand on Hardwick's neck after which Hardwick swung and hit Talley in the face and arm with his left hand. Both men fell to the ground. Talley then got up and walked to the exit with Andrew. Talley never spoke with Lizardo that evening and she did not provoke or encourage either Hardwick or Talley to fight.
In her deposition, Lizardo stated that she attempted to get between Hardwick and Talley to break up the fight during this incident. Because Talley repeatedly denied that he had any contact with Lizardo that night and because this fact is not relevant to our resolution of the issues (see Discussion, post), we need not address it further.
On March 8, 2017, Hardwick filed a complaint for damages against Talley, alleging personal injuries based on three causes of action for intentional tort, which resulted in wage loss and general damages.
On January 19, 2018, Talley filed a first amended cross-complaint (the complaint) against Hardwick and Lizardo, with causes of action against Lizardo for negligence (first cause of action) and aiding and abetting (fourth cause of action). In support of the negligence cause of action, Talley alleged, as to Lizardo, that she "was negligent in exercising the duty of care . . . by placing [Talley] in imminent fear of physical harm by the threat of use of lethal force with respect to the incident at the Vacaville address when [Lizardo] yells 'he's got a gun,' " and that this negligence "was a substantial factor in causing injuries suffered by [Talley]." In support of the aiding and abetting cause of action, Talley alleged that Lizardo "aided and abetted [Hardwick] in committing the intentional infliction of emotional distress because [she] knew that intentional infliction of emotional distress [was] being committed by . . . Hardwick against [Talley]," that she "gave substantial assistance or encouragement to . . . Hardwick," and that her "conduct was a substantial factor in causing harm to [Talley]."
The causes of action against Hardwick in the complaint included negligence, battery, and intentional infliction of emotional distress.
Talley also alleged in the negligence cause of action that Lizardo breached her fiduciary duty by using his BMW and other property to meet with Hardwick. On appeal, he does not challenge the court's finding against him on this issue in its order granting summary adjudication of the first cause of action for negligence.
On April 10, 2018, Lizardo filed a motion for summary judgment or, alternatively, summary adjudication of issues.
On June 28, 2018, following a hearing, the court entered an order granting Lizardo's motion for summary judgment. Regarding the first cause of action for negligence, based on Lizardo's conduct during the April 1, 2016 incident, the court summarized the evidence, including that "Talley initiated a physical altercation with Hardwick" and that "[t]he testimony from all witnesses indicates that Hardwick and Talley fought, and that Lizardo implored them to stop fighting. [Talley] testified that Hardwick struck him in the mouth and caused him to start bleeding. [Talley] then told Hardwick that he was going to 'whoop' Hardwick's ass and Hardwick went inside his house. At this point, Lizardo told Talley that, 'He's got a gun!' " Based on this undisputed evidence, the court determined "that no reasonable jury could find that [Lizardo] is liable to [Talley] for negligently causing him to suffer severe emotional distress by uttering the words, 'He's got a gun!' [Citations.] In addition, [Talley] has not presented sufficient admissible evidence to support a reasonable inference that he suffered serious or severe emotional distress as a result of [Lizardo's] uttering of the words, 'He's got a gun!' at the scene of his physical confrontation with Hardwick. [Citation.] [Talley] testified that Lizardo repeatedly implored him and Hardwick to stop fighting by yelling at them from the driveway, and that after Hardwick hit him in the mouth, she said, 'Let's go!' [Talley] did not see Hardwick emerge from his house after he and Lizardo got in their cars to drive away. [Talley] did not know whether Hardwick actually owned a gun."
In addition, regarding the alleged based on Lizardo's conduct during the March 4, 2017 incident, the court found that Talley "did not present sufficient admissible evidence to support a reasonable inference that . . . Lizardo breached her duty of care to him . . . . [Talley] testified that Lizardo was not in the vicinity when he and Hardwick started fighting. [Talley] testified that he wanted to talk to Lizardo, but she had already walked out the door to the patio behind the bar when the confrontation occurred. . . ."
With respect to the fourth cause of action for aiding and abetting, the court determined that the evidence presented by Talley was "insufficient to support an inference by a hypothetical reasonable jury that [Lizardo] intentionally provided substantial assistance to . . . Hardwick in his two physical altercations with [Talley]. [Citation.] [Talley] testified that . . . Lizardo was not in the vicinity during the fight that he had with . . . Hardwick on March 4, 2017. [Talley] testified that Hardwick cut him off when he was trying to follow Lizardo to the patio behind the bar, at which time he put his right hand on Hardwick's neck and Hardwick took a swing at him with his left hand. [Talley] testified unequivocally that Lizardo had already walked out the back door when the fight commenced. In addition, [Talley] did not identify any admissible evidence in his opposition to support a reasonable inference that Lizardo intended to provide substantial assistance to Hardwick during the first altercation . . . on April 1, 2016."
On July 5, 2018, the notice of entry of order granting summary judgment was filed.
On August 29, 2018, Talley filed a notice of appeal.
Judgment was entered on September 19, 2018. On November 20, 2018, Lizardo filed a motion to dismiss this appeal on the ground that Talley improperly appealed from the July 5, 2018 notice of entry of order, rather than the subsequent judgment or notice of entry of judgment. We denied the motion to dismiss on January 3, 2019. (See Cal. Rules of Court, rule 8.104(d)(2) ["The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment"].)
DISCUSSION
I. Summary Judgment Rules and Standard of Review
A motion for 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." (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853 (Aguilar).) " 'The plaintiff . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' ([§] 437c, subd. ([p])(2).)" (Aguilar, at p. 849.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
" ' "[W]e take the facts from the record that was before the trial court when it ruled on that motion," ' and ' " ' "review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' " ' [Citations.] In addition, we ' "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' [Citation.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
II. Negligence Cause of Action
Talley contends the court erred in granting summary adjudication of the negligence cause of action because triable issues of material fact exist as to whether Lizardo breached her duty of care to Talley during the April 1, 2016 incident at Hardwick's home and whether Talley suffered serious or severe emotional distress as a result of her negligence on that date. He also asserts that the court improperly weighed the evidence, rather than simply determining whether any triable issues of material fact existed.
In his briefing, Talley does not address the applicability of this claim, if any, to the March 4, 2017 incident. We will therefore limit our discussion to the April 1, 2016 incident.
"The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. [Citation.]" (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892-893.)
First, we reject Talley's claim that there is a triable issue of material fact as to whether Lizardo breached her duty of care when she purportedly distracted him during the incident at Hardwick's home, resulting in his being punched by Hardwick, and when she shouted, "He's got a gun." No reasonable jury could find that the undisputed facts regarding what took place at Hardwick's home, i.e., Lizardo shouting for the men to stop fighting during the incident, trying to get Talley to leave the scene with her, and warning Talley that Hardwick had a gun when Hardwick ran into his house following Talley's threat, provide evidence that Lizardo breached her duty of care.
This case is plainly distinguishable from Carlsen v. Koivumaki, supra, 227 Cal.App.4th at pages 894-895, cited by both parties, in which the appellate court concluded the evidence, if proved, supported a finding that there was a "special relationship" between the defendant and the highly intoxicated plaintiff who was in a particularly vulnerable position and dependent on the defendant, who had offered to drive him home. If a jury were to conclude the defendant had a special relationship with the plaintiff, it meant she had a duty to get him home safely but, instead, she drove him to the edge of a cliff where she left him alone. (Id. at p. 895.) In addition, when he fell over the edge of the cliff, she waited several hours before reporting his fall to police. (Ibid.) The court concluded the trial court wrongly granted summary adjudication on the plaintiff's negligence cause of action in favor of the defendant because the plaintiff's "showing made out a legally cognizable claim that [the defendant] breached her duty to use ordinary care by participating in bringing [the plaintiff], whom she knew was highly intoxicated, to the edge of a cliff." (Ibid.)
In this case, as discussed, Talley has plainly not made out a legally cognizable claim showing that any harm he suffered was caused by Lizardo's breach of any duty she owed to him.
Second, because there was no triable issue of material fact regarding whether Lizardo was negligent during the April 1, 2016 incident, Talley clearly cannot show that she is responsible for damages for the serious or severe emotional distress he allegedly suffered as a result of her negligence. Moreover, to prove severe emotional distress, a plaintiff must show " ' " 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.' " ' [Citations.]" (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051; see also Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377-1378 [to show negligent infliction of emotional distress, a plaintiff must prove "serious emotional distress," which "is functionally the same as the articulation of 'severe emotional distress' "].) Here, the minimal evidence presented on this point shows that Talley had met with a therapist to discuss his divorce and other issues, including the incidents involving Lizardo and Hardwick. In his deposition, he merely affirmed that he had "suffered emotional distress" during the March 4, 2017 San Jose incident, and the April 1, 2016 Vacaville incident without any description of what the supposed emotional distress involved. Talley's bare statement that he suffered emotional distress plainly does not demonstrate the existence of a triable issue of fact regarding whether he suffered serious or severe emotional distress as a result of Lizardo's purported negligence. (See ibid.)
In conclusion, the trial court did not improperly ignore or weigh the evidence. Rather, it found, as we do, that Talley failed to set forth evidence showing that a triable issue of material fact exists as to the cause of action for negligence. (See Aguilar, supra, 25 Cal.4th at p. 849; § 437c, subd. (p)(2).) The court properly granted summary adjudication in favor of Lizardo on the first cause of action for negligence.
III. Aiding and Abetting Cause of Action
Talley contends the court erred in granting summary adjudication of the aiding and abetting cause of action because a triable issue of material fact exists as to whether Lizardo aided and abetted Hardwick in committing the intentional tort of assault and/or battery on Talley, in both the April 1, 2016 and the March 4, 2017 incidents.
CACI No. 3610 defines the tort of aiding and abetting as follows.
"[Name of plaintiff] claims that [he/she] was harmed by [name of actor]'s [insert tort theory, e.g., assault and battery] and that [name of defendant] is responsible for the harm because [he/she] aided and abetted [name of actor] in committing the [e.g., assault and battery].
"If you find that [name of actor] committed [a/an] [e.g., assault and battery] that harmed [name of plaintiff], then you must determine whether [name of defendant] is also responsible for the harm. [Name of defendant] is responsible as an aider and abetter if [name of plaintiff] proves all of the following:
"1. That [name of defendant] knew that [a/an] [e.g., assault and battery] was [being/going to be] committed by [name of actor] against [name of plaintiff];
"2. That [name of defendant] gave substantial assistance or encouragement to [name of actor]; and
"3. That [name of defendant]'s conduct was a substantial factor in causing harm to [name of plaintiff].
"Mere knowledge that [a/an] [e.g., assault and battery] was [being/going to be] committed and the failure to prevent it do not constitute aiding and abetting."
"The fact that [CACI No. 3610] does not use the word 'intent' is not determinative. 'California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted in. . . . "The words 'aid and abet' as thus used have a well understood meaning, and may fairly be construed to imply an intentional participation with knowledge of the object to be attained." [Citation.]' [Citation.] A defendant who acts with actual knowledge of the intentional wrong to be committed and provides substantial assistance to the primary wrongdoer is not an accidental participant in the enterprise." (Upasani v. State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 519.)
Here, it is undisputed that Lizardo did nothing to encourage or provoke Hardwick to commit a battery against Talley during the April 1, 2016 altercation, and there is no evidence in the record from which it could be inferred that she provided such assistance or encouragement to Hardwick "with knowledge of the object to be attained." (Upasani v. State Farm General Insurance Co., supra, 227 Cal.App.4th at p. 519.) The undisputed evidence shows, to the contrary, that Lizardo told the men to stop fighting, attempted to get Talley to leave with her, and warned Talley about Hardwick's possession of a gun, with absolutely no evidence that she "was other than an accidental participant in the enterprise." (Ibid.)
Regarding the allegation that Lizardo aided and abetted Hardwick during the March 4, 2017 incident, Talley provides the following single sentence in his opening brief: "Finally, it is submitted that [Lizardo] has produced no facts based upon the foregoing, the Trial Court's grant of Summary Judgment with respect to the Fourth Cause of Action in the [complaint] be reversed, because triable issues of fact are present." In light of this somewhat incomprehensible sentence, which includes no legal argument or citation to the record, Talley plainly has not preserved for appeal the issue of aiding and abetting with respect to the March 4, 2017 incident. (See Cal. Rules of Court, rules 8.204(a)(1)(B) [each brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority"] and 8.204(a)(1)(C) [each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"]; Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 294 [" ' "This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record" ' "].)
As with the negligence cause of action, the trial court did not improperly ignore or weigh the evidence, and we find that Talley has failed to set forth evidence showing that a triable issue of material fact exists as to the cause of action for aiding and abetting. (See Aguilar, supra, 25 Cal.4th at p. 849; § 437c, subd. (p)(2).) Summary adjudication was properly granted in favor of Lizardo on the fourth cause of action for aiding and abetting.
IV. The Need for a Stipulation Pursuant to Section 473c , Subdivision (t)
Talley's final claim in his opening brief reads as follows: "Summary adjudication must dispense with an entire cause of action; otherwise it must be denied, unless stipulated between the parties pursuant to . . . section 437c(f) [sic]. Presently there has been no stipulation between the parties pursuant to [section] 437c(t). [Citation.]" Talley cites to his attorney's June 12, 2018 declaration in opposition to Lizardo's summary judgment motion, in which his attorney stated, "Neither Courtney Talley nor his attorney . . . have stipulated to summary adjudication of issues pursuant to . . . section 437c(t)."
Subdivision (t) of section 437c provides in relevant part: "Notwithstanding subdivision (f), 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 this subdivision.
"(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
"(i) A joint stipulation stating the issue or issues to be adjudicated.
"(ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement."
In her motion for summary judgment, Lizardo did not attempt to dispose of a legal issue or claim for damages that did not completely dispose of a cause of action. (See § 437c, subd. (t).) Rather, the motion successfully sought to dispose of all causes of action alleged against Lizardo in Talley's complaint. Hence, the joint stipulation requirement of section 437c, subdivision (t)(1)(A)(i) is inapplicable here.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to cross-defendant and respondent Ranette Lizardo.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.