Filed 6/4/20; Certified for Publication 6/24/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION THREE

KARABETTE HANOUCHIAN,                               B291609

     Plaintiff and Appellant,                       Los Angeles County
                                                    Super. Ct. No. BC664047
        v.

TEAGAN STEELE et al.,

     Defendants and Respondents.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, John Kralik, Judge. Affirmed.
      The Pivtorak Law Firm and David Pivtorak for Plaintiff
and Appellant.
      The Safarian Firm, Harry A. Safarian, Christina S.
Karayan; Greines, Martin, Stein & Richland and Robert A. Olson
for Defendants and Respondents Teagan Steele and Lindsay
Kusumoto.
      Hartsuyker, Stratman & Williams-Abrego, Matthew
Saunders; Veatch Carlson and Serena L. Nervez for Defendant
and Respondent Reena Villamater.
      Daniels, Fine, Israel, Schonbuch & Lebovits, Erin O.
Hallissy and Jonathan R. Gerber for Defendant and Respondent
Autumn Hooks.
                   _________________________

                         INTRODUCTION
      Respondents Teagan Steele, Reena Villamater, Autumn
Hooks, and Lindsay Kusumoto are members of the Phi Mu
sorority at California State University, Northridge (CSUN).
Plaintiff Karabette Hanouchian went to a Phi Mu party that
Respondents hosted at their off-campus residence. He was
attacked suddenly, and without provocation, by two other men
at the party. Plaintiff sued Respondents, asserting a claim for
negligence based on their alleged failure to follow certain risk
management protocols adopted by CSUN and its fraternal
organizations pertaining to off-campus events.1 The trial court
sustained Respondents’ demurrers and entered a judgment of
dismissal, concluding Respondents did not owe Plaintiff a legal
duty to follow the CSUN protocols. We affirm.



1      Plaintiff also sued his attackers and the Phi Mu sorority
chapter at CSUN. Those defendants are not parties to this
appeal. Plaintiff also asserted a premises liability claim, which
he does not discuss in his appellate briefs. We consider only
the negligence claim in this opinion. (See Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“Appellate
briefs must provide argument and legal authority for the
positions taken. ‘When an appellant fails to raise a point,
or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived.’ ”].)




                                 2
          FACTS AND PROCEDURAL BACKGROUND
        Consistent with the applicable standard of review, we draw
our statement of facts from the allegations of plaintiff’s operative
first amended complaint and other matters properly subject to
judicial notice.2 (Orange Unified School Dist. v. Rancho Santiago
Community College Dist. (1997) 54 Cal.App.4th 750, 764;
Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)
“[W]e treat as true all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law.” (Freeman
v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 178,
fn. 3.)
        According to the allegations of the operative first amended
complaint, CSUN and its fraternal organizations jointly
developed rules and guidelines governing fraternity and sorority
events to respond to past incidents of violent physical brawls,
assaults, and sexual misconduct at events that had open guest
lists, unlimited alcohol, and no security. Those rules require
sororities hosting an off-campus event to: register the event
with CSUN; submit and receive approval of a guest list; screen
people entering the event, including attendees who are visibly
intoxicated; limit the amount and type of alcohol provided;
provide adequate security arrangements, including spot-checks
by university police; and comply with “established risk

2      Plaintiff requested judicial notice of several handbooks
from other universities pertaining to fraternal organization
social events. The handbooks are not among the types of facts
or documents of which we can take judicial notice under the
Evidence Code. (See Evid. Code, §§ 452, 459.) The request
for judicial notice is denied.




                                 3
management policies.” Specifically, those risk management
policies, as set forth in a “New Member Handbook” for CSUN
fraternal organizations, prohibit “OPEN PARTIES, meaning
those with unrestricted access by nonmembers of the fraternity,
without specific invitation, where alcohol is present.”
       Under CSUN’s recruitment, intake, and new member
procedures for recognized fraternal organizations, all prospective
recruits and potential new members must complete a pre-
recruitment education program offered by the school, and all
active chapters must “complete an annual educational program
that includes but is not limited to: risk management, anti-hazing
policies, Title IX requirements, campus resources, and
recruitment strategies.” The complaint alleges that, as a
recognized sorority at CSUN, Phi Mu and its members, including
Respondents, were “charged with the responsibility of knowing
and following the University Guidelines regarding fraternal
organizations.”
       On June 6, 2015, Phi Mu hosted an “open party” at an off-
campus residence “in the possession and control” of Respondents.
The complaint alleges the party was a “sorority event,”
“sanctioned by and held for the benefit of” Phi Mu. It further
alleges the party was “thrown in violation of the CSUN fraternal
organization guidelines and safety procedures. Specifically,
the Party was not registered with the University; [Respondents]
did not submit or receive approval of a guest-list for the Party;
[Respondents] failed to provide adequate screening for people
entering the Party, including individuals who were visibly
intoxicated; [Respondents] gave guests, including minors,
unlimited access to alcohol; and [Respondents] failed to provide




                                4
adequate security arrangements and risk management
arrangements.”
       A friend invited Plaintiff to the party. When he arrived,
Plaintiff “observed it to be an open party associated with”
Phi Mu. He alleges, there “was no one at the door checking ID’s
or controlling who went in and out of the Property; there was
no security present; of the approximately 100 people at the Party,
the majority were associated with [Phi Mu]; [and] many people
at the party were openly taking or consuming illegal drugs.”
       Two other men, Greg Cuoco and Tyler Mackay, were also at
the party that evening. Mackay and Cuoco had not been invited
to the party, but they allegedly “were able to get in because it
was an open party.” They were “not students at CSUN at the
time of the Party.”
       Plaintiff alleges Mackay and Cuoco were “partying heavily
at the event and were looking to start a fight.” While Plaintiff
was having a conversation with a friend, Mackay “suddenly,
and without any provocation,” grabbed Plaintiff. Cuoco then
“blindsided Plaintiff with a sucker-punch,” causing Plaintiff
to fall to the ground. While Plaintiff was down, Cuoco “struck
Plaintiff with a glass bottle on the left side of his face,”
puncturing his left eye. After the assault, while Plaintiff was
“bleeding profusely,” Respondent Kusumoto “approached Plaintiff
aggressively and screamed at him to ‘Get the f—out of my
house!’ ” Several people then pushed Plaintiff out into the street.
A surgeon had to remove Plaintiff’s entire iris to save his left eye.
He has undergone multiple surgeries and is permanently scarred
from the attack.
       Plaintiff sued Respondents asserting a claim for negligence.
He alleged Respondents were “aware of past violent incidents at




                                 5
CSUN fraternal organization events” and they “owed statutory,
common law, and assumed duties to protect Plaintiff from
foreseeable risk of harm resulting from sorority-related events
and activities that violated CSUN’s fraternal organization safety
protocols and risk management procedures.” Respondents
allegedly breached this duty by “intentionally throwing the
Party in direct violation of the rules and guidelines which they
themselves established and were required to follow.”
       Respondents filed separate demurrers, arguing Plaintiff
failed to state a legal claim for relief because (1) Respondents
did not owe him the legal duty alleged, and (2) Respondents were
immune from liability under the social host immunity provision
of Civil Code section 1714 for injuries inflicted by Cuoco and
Mackay, who were intoxicated at the time of the attack. (See
Civ. Code, § 1714, subd. (c) [“Except as provided in subdivision
(d), no social host who furnishes alcoholic beverages to any
person may be held legally accountable for damages suffered by
that person, or for injury to the person or property of, or death of,
any third person, resulting from the consumption of those
beverages.”]; see also, id., subd. (b) [“the furnishing of alcoholic
beverages is not the proximate cause of injuries resulting from
intoxication, but rather the consumption of alcoholic beverages
is the proximate cause of injuries inflicted upon another by an
intoxicated person”].)3

3      We requested supplemental briefing from the parties to
address this defense, which the trial court did not cite as a basis
for its ruling. (See Wheeler v. County of San Bernardino (1978)
76 Cal.App.3d 841, 846, fn. 3.) In his response, Plaintiff
suggested he could allege in good faith that Respondents had not
“furnished alcohol to Mackay and Cuoco,” as it was possible they




                                  6
        The trial court sustained Respondent Steele’s demurrer
without leave to amend, concluding Steele “did not assume a duty
to Plaintiff Hanouchian to prevent the alleged criminal acts of
Defendants Mackay and Cuoco.” After the court entered an order
sustaining Respondent Villamater’s demurrer on the same
ground, Plaintiff and Respondents entered into a stipulation
acknowledging the operative complaint’s allegations were
“identical and therefore present the same legal questions” as to
each Respondent and, thus, judgment should be entered in favor
of all Respondents to conserve judicial resources and facilitate an
appeal. The trial court entered a judgment for all Respondents
in accordance with the stipulation. Plaintiff timely appealed.
                            DISCUSSION
1.      Standard of Review
        We review a judgment of dismissal after an order
sustaining a demurrer de novo, exercising our independent
judgment about whether the complaint states a cause of action
as a matter of law. (Los Altos El Granada Investors v. City of
Capitola (2006) 139 Cal.App.4th 629, 650.) We “assume the truth
of all facts properly pleaded by the plaintiffs, as well as those
that are judicially noticeable.” (Howard Jarvis Taxpayers Assn.
v. City of La Habra (2001) 25 Cal.4th 809, 814.) “We may affirm
on any basis stated in the demurrer, regardless of the ground on


had “consumed only their own alcohol at the party”; “they only
consumed illegal drugs”; “they were already intoxicated when
they arrived at the party;” or they were not intoxicated but they
were simply “being rowdy and seeking to start a fight.” Based
on Plaintiff’s response, we accept the complaint could be amended
so that social host immunity would not apply.




                                7
which the trial court based its ruling.” (Krolikowski v. San Diego
City Employees’ Retirement System (2018) 24 Cal.App.5th 537,
549; Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
       When the trial court denies leave to amend, “we also must
decide whether there is a reasonable possibility that the defect
can be cured by amendment.” (Koszdin v. State Comp. Ins. Fund
(2010) 186 Cal.App.4th 480, 487.) “The plaintiff bears the burden
of proving there is a reasonable possibility of amendment.
[Citation.] . . . [¶] To satisfy that burden on appeal, a plaintiff
‘must show in what manner he can amend his complaint
and how that amendment will change the legal effect of his
pleading.’ ” (Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43.) The requisite showing can be made for
the first time on appeal. (City of Stockton v. Superior Court
(2007) 42 Cal.4th 730, 746.)
2.     Respondents Did Not Owe Plaintiff a Legal Duty
       to Follow CSUN’s Fraternal Organization Safety
       Protocols to Prevent a Third Party Criminal Attack
       “In general, each person has a duty to act with reasonable
care under the circumstances. [Citations.] However, ‘one owes
no duty to control the conduct of another, nor to warn those
endangered by such conduct.’ [Citation.] ‘A person who has
not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another unless there is
some relationship between them which gives rise to a duty
to act.’ ” (Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 619.)
       “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)




                                 8
30 Cal.App.5th 429, 444 (USC); Peterson v. San Francisco
Community College Dist. (1984) 36 Cal.3d 799, 807 (Peterson);
see also Rowland v. Christian (1968) 69 Cal. 2d 108, 113–119
(Rowland).) “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. (USC, at p. 444; Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1213 (Castaneda); Delgado v. Trax Bar
& Grill (2005) 36 Cal.4th 224, 235 (Delgado); Ann M. v. Pacific
Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).)
       “[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, supra, 41 Cal.4th at p. 1213; Delgado,
supra, 36 Cal.4th at pp. 237–238; Ann M., supra, 6 Cal.4th at
pp. 674, 678–679.) In determining a duty’s existence and scope,
we 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., at p. 675, fn. 5,
quoting Rowland, supra, 69 Cal.2d at p. 113; Castaneda, at
p. 1213.) “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, at p. 1213;




                                  9
Delgado, at p. 237, fn. 15; Sharon P. v. Arman, Ltd. (1999)
21 Cal.4th 1181, 1189–1190, fn. 2 (Sharon P.).)
       With respect to the two most crucial considerations, our
Supreme Court has instructed that “ ‘the scope of the duty is
determined in part by balancing the foreseeability of the harm
against the burden of the duty to be imposed. [Citation.] “ ‘[I]n
cases where the burden of preventing future harm is great, a high
degree of foreseeability may be required. [Citation.] 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.’ ” ’ ”
(Castaneda, supra, 41 Cal.4th at p. 1213, quoting Ann M., supra,
6 Cal.4th at pp. 678–679.) The high court has described this
analysis as a “sliding-scale balancing formula.” (Delgado, supra,
36 Cal.4th at p. 243; Castaneda, at pp. 1213-1214.)
       The prescribed duty analysis “requires the court in each
case (whether trial or appellate) to identify the specific action
or actions the plaintiff claims the defendant had a duty to
undertake. ‘Only after the scope of the duty under consideration
is defined may a court meaningfully undertake the balancing
analysis of the risks and burdens present in a given case to
determine whether the specific obligations should or should not
be imposed on the landlord.’ ” (Castaneda, supra, 41 Cal.4th at
p. 1214.) “ ‘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




                               10
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.’ ” (Ibid.) “[O]ther Rowland factors may come into
play in a given case, but the balance of burdens and foreseeability
is generally primary to the analysis.” (Ibid.)
       Consistent with the prescribed analysis, we begin by
identifying the specific actions Plaintiff claims Respondents
were obliged to take to protect him from being assaulted.
(See Castaneda, supra, 41 Cal.4th at p. 1215.) The operative
complaint alleges Respondents “owed statutory, common law,
and assumed duties to protect Plaintiff from foreseeable risk of
harm resulting from sorority-related events and activities that
violated CSUN’s fraternal organization safety protocols and risk
management procedures.” Specifically, the complaint asserts
Respondents owed Plaintiff a legal duty to: register the event
with CSUN; submit and receive approval of a guest list; screen
people entering the event, including attendees who are visibly
intoxicated; limit the amount and type of alcohol provided;
provide adequate security arrangements, including spot-checks
by university police; and comply with “established risk
management policies.”




                                11
       Here, at least three of the specific actions that Plaintiff
proposes—employing private security, permitting checks by
university police, and vetting attendees—are highly burdensome
measures that require a heightened degree of foreseeability to
impose under the prescribed sliding-scale balancing formula.
(See Delgado, 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.”];
see also Castaneda, 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”].)
       As our Supreme Court explained in Ann M., “[w]hile there
may be circumstances where the hiring of security guards will
be required to satisfy a landowner’s duty of care, such action
will rarely, if ever, be found to be a ‘minimal burden.’ ” (Ann M.,
supra, 6 Cal.4th at p. 679.) “The monetary costs of security
guards is not insignificant. Moreover, the obligation to provide
patrols adequate to deter criminal conduct is not well defined.
‘No one really knows why people commit crime, hence no one
really knows what is “adequate” deterrence in any given
situation.’ [Citation.] Finally, the social costs of imposing a
duty on landowners to hire private police forces are also not
insignificant. [Citation.] For these reasons, . . . a high degree
of foreseeability is required in order to find that the scope of a
landlord’s duty of care includes the hiring of security guards.”




                                12
(Ibid., italics added; see also Sharon P., supra, 21 Cal.4th at
p. 1191 [“a high degree of foreseeability” is required to “justify
imposition of . . . an obligation . . . to provide security guards in
their garage”].)
       Similarly, in Melton v. Boustred (2010) 183 Cal.App.4th 521
(Melton), the reviewing court held a party host’s alleged duty to
“limit[ ] the guest list,” as a measure to prevent a third party
criminal assault on other party attendees, was “objectionable
on several grounds, including vagueness, lack of efficacy, and
burdensomeness in terms of social cost.” (Id. at p. 540.) The
defendant in Melton posted an open invitation on his social
networking site for a party at his residence featuring live music
and alcoholic beverages. (Id. at p. 527.) Upon arriving at the
party, the plaintiffs were attacked, beaten, and stabbed by a
group of unknown individuals. (Ibid.) The plaintiffs argued the
“ ‘methods available to the defendant to limit the scope of the
invitation were neither burdensome nor expensive,’ ” citing a
feature on the social media site that would have allowed the
defendant “to limit invitations to ‘friends’ only.” (Id. at pp. 539–
540.) The Melton court rejected the argument, reasoning that the
measure represented a “weighty social burden” as it would have
effectively limited the defendant from “ ‘networking . . . both
socially and professionally,” as he had a right to do in his own
residence. (Id. at p. 540.) Coupled with the doubtful efficacy
of the measure to screen party attendees who might commit
criminal assaults, the Melton court concluded a heightened
degree of foreseeability was required to impose the measure
as a legal duty on the defendant. (Id. at pp. 540–541, citing
Castaneda, supra, 41 Cal.4th at p. 1217 [“ ‘proposed screening’ ”




                                 13
of housing applicants’ criminal records was not “ ‘likely to
be especially effective’ ” in identifying gang affiliation].)
       Critically, here, the special relationship upon which
Plaintiff premises Respondents’ alleged duty is the recognized
relationship between a possessor of land and a person who
enters upon the property. (See, e.g., Peterson, supra, 36 Cal.3d
at p. 807.) While the alleged training that Respondents received
as members of their sorority may have some bearing on the
foreseeability of this alleged attack, there is no recognized special
relationship between sorority members and party-goers that
would permit the imposition of a greater or more burdensome
duty upon Respondents merely because of their sorority
membership than could be imposed upon another landowner
who received similar training. (See id. at p. 806 [listing
“recognized special relationships”].)
       Nor does the alleged fact that Respondents’ sorority
agreed to CSUN’s fraternal organization guidelines diminish
the burdensomeness of the specific actions that Plaintiff claims
Respondents were obliged to take. While Respondents were
certainly free to agree to CSUN’s protocols, and could be subject
to disciplinary action by CSUN for violation of its guidelines,
their agreement to be bound by the guidelines is not a basis to
impose a greater legal duty upon Respondents than our statutory
or common law permits. (See Fireman’s Fund Ins. Co. v. Security
Pacific Nat’l Bank (1978) 85 Cal.App.3d 797, 829 [“While in some
situations violation of a company rule may be used as evidence of
breach of duty, it cannot be used to establish the existence of such
a duty when contrary to both statutory and common law.”];
accord, Minch v. Department of California Highway Patrol (2006)
140 Cal.App.4th 895, 908 [“The provisions of the [CHP] manual




                                 14
would be admissible evidence on the question of breach of duty
but do not substitute for judicial determination whether a duty
was owed.”].) Indeed, because the proposed imposition of a legal
duty to allow “ ‘spot-checks’ by University Police” and to “receive
approval of a guest-list” implicates the waiver of constitutionally
protected rights, it necessarily constitutes a heavy burden
requiring heightened foreseeability. (See U.S. Const., 1st Amend.
[no law shall abridge the right to peaceably assemble]; id., 4th
Amend. [no unreasonable search without probable cause];
Delgado, supra, 36 Cal.4th at pp. 243–244.)
       Plaintiff contends he has alleged sufficient facts to prove
the third party criminal attack he suffered was highly foreseeable
and thus justified the burdensome measures he proposes. He
points to the operative complaint’s allegations that “CSUN
fraternal organization events and activities that involved no
security, open guest-lists, and unlimited alcohol had a history of
violent conduct,” and that “in response to these violent incidents
CSUN fraternal organizations and, by association—their
members—established certain rules and guidelines governing
their events and activities,” as proof that Respondents’ failure
to follow the guidelines made the attack highly foreseeable.
The allegations are insufficient to establish the high degree of
foreseeability required to impose the burdensome legal duty
that Plaintiff proposes.
       To establish heightened foreseeability for third party
criminal conduct, our authorities have consistently required
actual knowledge—not constructive, inferential, or knowledge
by association—to impose a burdensome legal duty. In Wiener
v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138
(Wiener), our Supreme Court explained why more than a general




                                15
prospect of danger is required “before we can hold a defendant
liable for the criminal acts of third parties.” (Id. at pp. 1149–
1150, citing with approval Robison v. Six Flags Theme Parks Inc.
(1998) 64 Cal.App.4th 1294, 1301.) There, the defendant
operated a child care center on the corner of a busy street,
with a playground enclosed by a four-foot-high chain link fence.
(Wiener, at pp. 1142–1143.) A man intentionally drove his
vehicle into the playground killing two children and injuring
others. (Id. at p. 1143.) The parents of the deceased and injured
children sued the defendant, claiming the need for a sturdier
fence was foreseeable because, several years earlier, a mail truck
had accidently crashed through the fence and into the
playground. (Ibid.)
       The Wiener court rejected the argument, reasoning a prior
negligent encroachment did not make a deliberate criminal act
highly foreseeable. The Supreme Court explained: “[F]irst, it is
difficult if not impossible in today’s society to predict when a
criminal might strike. Also, if a criminal decides on a particular
goal or victim, it is extremely difficult to remove his every means
for achieving that goal.” (Wiener, supra, 32 Cal.4th at p. 1150.)
Thus, the court held: “Without prior similar criminal acts, or
even any indication of prior criminal acts or intrusions of any
type in the surrounding businesses, defendants here could not
have been expected to create a fortress to protect the children,
or to take further steps to deter or hinder a vicious murderer,
unconcerned about the safety of innocent children, from
committing his crime.” (Id. at p. 1151.)
       In Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141
(Margaret W.), the reviewing court extended this logic to hold
“foreseeability must be measured by what the defendant actually




                                16
knew” before the defendant could be charged with a duty to
prevent a third party criminal act. (Id. at p. 156, italics added.)
In rejecting the claim that the defendant had a duty to retrieve
her teenage daughter’s sleepover guest, after the guest left the
defendant’s home with some boys and was sexually assaulted,
the Margaret W. court explained: “None of these cases [Wiener,
Delgado, or Morris v. De La Torre (2005) 36 Cal.4th 260 (Morris)]
has held that a defendant owed a duty to take steps to prevent
or respond to third party crime on the basis of constructive
knowledge or information the defendant should have known.”
(Ibid., italics added.)4 Because the defendant did not actually
know that her daughter’s guest “had left with boys” or that the
boys “had any propensity to commit sexual assaults,” it was not
highly foreseeable that such an assault would occur without her
intervention. (Id. at p. 158; see also Romero v. Superior Court
(2001) 89 Cal.App.4th 1068, 1089 [“To impose on an adult a duty
to supervise and protect a female teenage invitee against sexual
misconduct by a male teenage invitee, it is not enough to assert
that it is conceivable the latter might engage in sexual
misconduct during a brief absence of adult supervision.”].)
       The reviewing court reached the same conclusion in
Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654
(Williams). There, a musician left a bar after performing and
was assaulted in the parking lot. The evidence showed there
were three prior incidents where police had requested the bar’s

4     In Morris, our Supreme Court held the defendant
restaurant had a duty to reasonably respond to an attack its
employees watched unfolding in their presence, including the
“minimally burdensome” measure of calling 911. (Morris, supra,
36 Cal.4th at pp. 277–278.)




                                17
surveillance video of the area, twice relating to altercations and
once for a burglary. (Id. at pp. 660, 666–667.) The Williams
court concluded this evidence was insufficient to establish
heightened foreseeability: “[T]he evidence above demonstrates
that [the defendant] was generally aware of the possibility of
fights erupting at or near the bar. But a general knowledge of
the possibility of violent criminal conduct is not in itself enough
to create a duty under California law.” (Id. at p. 668, citing
Sharon P., supra, 21 Cal.4th at pp. 1185–1186 [evidence
defendant knew about armed robberies on building’s ground
floor did not make sexual assault at gunpoint in parking garage
sufficiently foreseeable to impose duty to provide security
guards].)
       Here, Plaintiff alleges the criminal attack he suffered
happened “suddenly, and without any provocation.” While he
alleges Respondents were “aware of past violent incidents at
CSUN fraternal organization events” generally, he does not
allege Respondents were aware of prior similar incidents at a
Phi Mu sorority party specifically, let alone that Respondents
had actual knowledge of Mackay’s or Cuoco’s violent propensities
that would have warranted the men’s exclusion from the party.
(See Margaret W., supra, 139 Cal.App.4th at p. 155 [“ ‘heightened
foreseeability’ ” requires “knowledge of the perpetrator’s
propensity to assault or knowledge of prior similar incidents in
that location”]; Delgado, supra, 36 Cal.4th at p. 240.) Nor does
he allege Respondents were aware of an imminent attack, or that
they knew his would-be assailants had been “partying heavily
at the event and were looking to start a fight,” as he alleges.
(Cf. Morris, supra, 36 Cal.4th at p. 271 [the obligation to prevent
possible future criminal conduct requires a higher degree of




                                18
foreseeability than one’s obligation “to respond reasonably to
criminal conduct that is imminent or even ongoing in his or her
presence”].)
        Respondents’ alleged knowledge of prior incidents at other
fraternity parties establishes only “general knowledge of the
possibility of violent criminal conduct” (Williams, supra, 37
Cal.App.5th at p. 668); it does not suffice to make it highly
foreseeable that a criminal assault would occur at Respondents’
party. (Cf. USC, supra, 30 Cal.App.5th at pp. 452–455
[recognizing the “possibility of injury at such a party
unrestrained by sensible rules and enforcement is reasonably
foreseeable,” but concluding foreseeability was insufficient to
impose legal duty on university to break up fraternity party
(italics added)].) This sort of “constructive knowledge” or
imputation of foreseeability by “common sense” is not sufficient
to impose, as a legal duty, the burdensome measures Plaintiff
proposes. (See Margaret W., supra, 139 Cal.App.4th at p. 156
[constructive knowledge insufficient]; Melton, supra, 183
Cal.App.4th at p. 538 [rejecting claim that foreseeability of
criminal assault was established by “common sense . . . that a
public invitation posted on [social media] to a free party offering
music and alcohol was substantially certain to result in an injury
to someone”].)
        Because Plaintiff cannot allege sufficient facts to establish
the high degree of foreseeability necessary to charge Respondents
with a legal duty to take highly burdensome measures to prevent
the type of sudden and unprovoked third party criminal attack
that allegedly occurred here, we need not consider the other
Rowland factors. (See Delgado, supra, 36 Cal.4th at p. 237, fn. 15
[“ ‘[t]he most important of [Rowland factors] in establishing duty




                                 19
is foreseeability,’ ” however, the “ ‘other factors may dictate
against expanding the scope of a landowner’s duty to include
protecting against third party crime, even where there is
sufficient evidence of foreseeability’ ” (italics added)].)
3.     Respondents’ Agreement to CSUN’s Fraternal
       Organization Safety Protocols Does Not Support
       a Negligent Undertaking Claim
       Plaintiff contends Respondents’ “failure to abide by their
own safety rules constitutes a negligent undertaking.” The
negligent undertaking doctrine is inapplicable to the alleged
facts of this case.
       “The foundational requirement for liability under a
negligent undertaking theory is the undertaking of a task that
the defendant allegedly performed negligently.” (USC, supra,
30 Cal.App.5th at p. 448, citing Paz v. State of California (2000)
22 Cal.4th 550, 559.) The undertaking must be to render
services that the defendant should recognize as necessary for the
plaintiff’s protection. (USC, at p. 448, citing Paz, at pp. 559–560;
Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 618.) “In addition
to satisfying these requirements, the plaintiff also must satisfy
one of two conditions: either (a) the defendant’s failure to exercise
reasonable care increased the risk of harm to the plaintiff, or
(b) the plaintiff reasonably relied on the undertaking and
suffered injury as a result.” (USC, at pp. 448–449, citing
Delgado, supra, 36 Cal.4th at p. 249; Williams v. State of
California (1983) 34 Cal.3d 18, 23; cf. Paz, at p. 560 [assuming
the defendant undertook to provide protective services, summary
judgment was proper because the plaintiff could not establish
any of the conditions for liability].) “Whether the defendant’s




                                 20
undertaking, if proven, gave rise to a duty of care is a question
of law for the court to decide.” (USC, at p. 449.)
       In USC, a party attendee sued a university after she was
pushed from a makeshift platform and was injured at an off-
campus fraternity party where alcohol was served. (USC, supra,
30 Cal.App.5th at pp. 436–437.) The plaintiff maintained the
university, “by adopting policies regarding alcohol use and social
events and providing a security patrol both on and off campus,”
had assumed a duty to protect party attendees from third party
conduct at fraternity parties. (Id. at p. 449.) The USC court
disagreed. First, the court concluded the university’s
undertaking did not increase the risk of harm: “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 [fraternity]
party after it began or preventing the party from occurring in the
first place, [the university] did not create any new peril.” (Id. at
p. 450.)
       Second, the USC court determined the plaintiff could not
show she “actually or reasonably relied” upon the alleged safety
policies: “Despite her deposition testimony that she relied on
[the university’s public safety department] to protect her, there
is no indication that her awareness of the existence of [the public
safety department] caused her to behave any differently.
[Citation.] The evidence also does not support her claim that any
reliance was reasonable. [The plaintiff] acknowledged that the
party was ‘very large, very crazy, packed and crowded,’ and
there was no visible security or control. Alcohol was plentiful. . . .
[The plaintiff] stepped onto a makeshift raised platform to dance
with her friends amid other partygoers and was bumped off




                                 21
the platform and fell to the ground. In these circumstances,
any reliance on [the university] or [its public safety department]
to protect her from harm was unreasonable.” (USC, supra,
30 Cal.App.5th at pp. 450–451, fn. omitted.)
       The same reasoning applies to the alleged facts in this case.
Just as the university in USC did not increase the risk of harm
by failing to enforce policies that required it to shut down the
fraternity party, so too Respondents did not increase the risk of
harm to Plaintiff by throwing an open party in violation of the
safety protocols their sorority had agreed to with CSUN. (See
USC, supra, 30 Cal.App.5th at p. 450; see also City of Santee v.
County of San Diego (1989) 211 Cal.App.3d 1006, 1015–1016
[The “increased risk” element of the negligent undertaking
doctrine is not satisfied where the defendant merely “fail[ed]
to eliminate a preexisting risk.”].)
       Nor can Plaintiff prove he actually and reasonably relied
upon CSUN’s safety protocols. The operative complaint alleges,
on information and belief, that the protocols required, among
other things, security, a guest list, and limits on alcohol. But
Plaintiff admits that, upon entering the party, he “observed”
there was no guest list or anyone checking identification (in fact,
he was an uninvited attendee); there was “no security present”;
and “many people at the party were openly taking or consuming
illegal drugs.” Even if Plaintiff could allege he knew about the
safety protocols at the time he attended the party (which he
does not), he cannot possibly prove based on these facts that he
reasonably relied upon the protocols to protect him. (See USC,
supra, 30 Cal.App.5th at pp. 450–451.)




                                22
                         DISPOSITION
       The judgment is affirmed. Respondents Teagan Steele,
Reena Villamater, Autumn Hooks, and Lindsay Kusumoto are
entitled to their costs.




                                   EGERTON, J.

We concur:




             EDMON, P.J.




             DHANIDINA, J.




                              23
Filed 6/24/20
                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                DIVISION THREE

KARABETTE HANOUCHIAN,                        B291609

     Plaintiff and Appellant,                Los Angeles County
                                             Super. Ct. No. BC664047
        v.
                                            ORDER CERTIFYING
TEAGAN STEELE et al.,                       FOR PUBLICATION
                                            [NO CHANGE IN JUDGMENT]
        Defendants and Respondents.


THE COURT:
      The opinion in the above-entitled matter, filed on June 4, 2020, was
not certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports.
      There is no change in the judgment.




________________________________________________________________________
EGERTON, J.                  EDMON, P. J.               DHANIDINA, J.
