Huntsman-West Found. v. Smith ( 2024 )

Filed 9/6/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
HUNTSMAN-WEST FOUNDATION et
al.,
E081025
Plaintiffs and Appellants,
(Super.Ct.No. RIC2004136)
v.
OPINION
MELINDA SUSAN SMITH,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.
Affirmed.
Garrett & Jensen and Boyd F. Jensen II for Plaintiffs and Appellants.
The Safarian Firm, Harry A. Safarian and Christina S. Karayan for Defendant and
Respondent.
Plaintiffs and Appellants Andrea Klein Gregg (Gregg) and the Huntsman-West
Foundation (the Foundation; collectively, plaintiffs) appeal the grant of a summary
judgment motion granted in favor of defendant and respondent Melinda Susan Smith
(Smith).
1
Gregg dated Dennis James Babcock (Babcock). Gregg had created the Foundation
and planned to donate her assets to be used for charitable endeavors. Babcock lived on
Dodd Street in Mira Loma (Premises). Babcock lived alone on the Premises, which had
belonged to his deceased wife, Mary Babcock (Mary1). When Mary passed away,
Babcock was allowed to remain on the Premises until he remarried. After he remarried
or upon his death, Mary’s daughter, Smith, would be given the Premises. At some point
in their relationship, Babcock allowed Gregg to store her items (Personal Property) on the
Premises in a trailer and in the garage. When the relationship soured, Gregg wanted the
Personal Property returned but Babcock initially insisted that he could not allow her
access to the Premises. When Gregg was finally able to access the Premises, most of
Gregg’s Personal Property was missing from the trailer and garage.
Plaintiffs brought suit against Babcock and Smith on the grounds of general
negligence, intentional tort, and premises liability for the loss of the Personal Property.
Smith brought her motion for summary judgment on the grounds that she had no duty to
protect the Personal Property as she had no control over the Premises or the Personal
Property. The trial court granted summary judgment.
On appeal, plaintiffs contend the trial court erred by sustaining Smith’s evidentiary
objections; that they properly raised the issues of agency, mutual interest, joint venture,
and ratification in the form complaint and the trial court erred by finding they were not a
1 We refer to some individuals by their first names for clarity due to shared last
names. No disrespect is intended.
2
proper basis to deny the Motion; and, as to Gregg, that the trial court erroneously
considered that Gregg had been convicted of elder abuse against Babcock.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
On October 20, 2020, plaintiffs filed their complaint against Babcock and Smith
(Complaint).2 Gregg had created the Foundation in 2019. She intended to donate her
assets to the Foundation as she wanted to support various charitable causes. The
Complaint included causes of action for general negligence, intentional tort, and premises
liability. Plaintiffs sought $1,029,714.96 in damages for the loss of Gregg’s Personal
Property.
In support of the Complaint, Larry Krepps (Krepps), president of the Foundation,
provided a narrative as to the facts supporting the Complaint.3 Babcock proposed to
Gregg in May 2015 but she did not agree to marry him until August 2015. Babcock kept
putting off the wedding date because he claimed to be afraid to tell Smith that he was
getting married. Babcock’s ex-wife, Mary, had allowed him to stay in the Premises
unless he remarried.
2 The motion for summary judgment was brought solely by Smith; Babcock is not
a party to this appeal.
3 In setting forth the facts of the narrative by Krepps, which was presented with
the Complaint, we do not rely on the facts in resolving the appeal. The narrative is
almost identical to the declaration submitted by Krepps in support of the opposition to the
Motion, which the trial court found the majority of was based on hearsay, lack of
foundation, improper conclusions of fact, and based on speculation and conjecture.
3
In 2019 Gregg moved the Personal Property, which consisted of clothes, fabric,
gold, silver, and other assets, into the Premises; specifically, the garage and a trailer.
Gregg put her own lock on the trailer and was the only person who possessed a key.
Babcock promised to care for and protect the Personal Property.
In October 2019 Babcock advised Smith that he was going to marry Gregg. Smith
was angry and advised Gregg to stay away from Babcock. Gregg asked Babcock if she
could come to the Premises to ensure that her Personal Property was safe. He told her
that she was not allowed on the Premises because Smith would not allow it. Krepps sent
a letter to Babcock in August 2020 seeking to have access to the Premises so that Gregg
could obtain the Personal Property. Gregg and Krepps obtained permission to enter the
Premises to obtain the Personal Property from the Riverside County District Attorney’s
Office and on September 16, 2020, went to the Premises to view the Personal Property.
Babcock denied entry claiming that Smith had to be present because the Premises
belonged to her and she was “in charge.” Babcock finally allowed entry to Gregg. She
went to the trailer and her lock had been removed; it was almost empty. Babcock would
not tell Gregg what happened to the Personal Property. Some of the fabric she left in the
garage was found sitting outside the garage. It had been damaged by rain, sun, and wind;
most of the Personal Property was missing from the garage. Krepps insisted that
Babcock later contacted him and stated he had taken the Personal Property.
As exhibits, plaintiffs provided an inventory of the Personal Property; photographs
of the purported Personal Property; and photographs of the trailer and garage after the
Personal Property was missing.
4
B. MOTION FOR SUMMARY JUDGMENT
Smith filed a motion for summary judgment on November 22, 2022 (Motion).
The ground for summary judgment was that there were no triable issues of fact based on
her having no control over the Premises or Personal Property.
Smith contended that plaintiffs were unable to prevail on the three causes of
action. As for premises liability, the undisputed facts unequivocally showed that Smith
had no control over the Premises or the Personal Property. Smith owed no duty to Gregg.
Any claims that Smith had any connection to the Personal Property was based on
speculation and hearsay. As for the intentional tort, plaintiffs failed to allege the
underlying tort. Further, they could not prevail on this claim as there was no evidence
linking Smith to the Personal property.
Smith submitted a separate statement of undisputed facts (separate statement).
She relied on her own declaration and excerpts from a deposition taken of Babcock.
Babcock had lived on the Premises since 2015 when Mary passed away. Smith had not
lived on the Premises for 40 years. Babcock exercised all control and management of the
Premises. Starting in 2019, Gregg stored her Personal Property on the Premises. Smith
had never been involved in the moving or storing of the Personal Property. Smith had
never had any control over Babcock and his decisions regarding the Personal Property.
Smith had never prevented Gregg from removing the Personal Property and had no
control over the decision-making of Babcock in relation to the return or destruction of the
Personal Property.
5
Smith submitted several exhibits with the Motion. Smith provided her own
declaration. Also attached were excerpts from Babcock’s deposition. In addition, Smith
attached an incident report from the Riverside County Sheriff’s Department regarding
allegations of elder abuse and embezzlement against Babcock filed on October 22, 2019.
Pursuant to the investigation, Babcock had allowed Gregg to handle his finances and
agreed to move approximately $175,000 from his savings account into a joint account
with Gregg. The amount was never transferred to the joint account, and he only had $200
in his bank account. He suspected Gregg had taken the money. She also took two of his
credit cards and refused to return them. Gregg also wanted to change Babcock’s trust.
Further, Gregg was supposed to pay taxes for Babcock but the money was never paid.
On October 28, 2021, Gregg pled guilty to elder abuse. She was ordered to pay
$354,987.26 in restitution to Babcock.
C. OPPOSITION TO MOTION
Plaintiffs filed opposition to the Motion on January 24, 2023. Plaintiffs alleged
that the narration provided by Krepps with the Complaint supported the factual allegation
that Smith had control of the Premises and the Personal Property. They insisted that
Smith was the “overarching actor in ‘controlling’ access to the property and personally,
her stepfather Dennis Babcock.”
Plaintiffs provided a statement of facts but did not cite to any sources. They
insisted that the separate statement presented by Smith did not comply with Code of Civil
Procedure section 437c. The separate statement consisted of arguments of counsel that
were unsubstantiated.
6
Plaintiffs provided that the Motion should be denied as Smith had a controlling
relationship over Babcock. Krepps, Gregg, Larry Gregg (Larry4), and Christine Kidder
(Kidder) could all testify about the controlling relationship. Further, Smith had provided
deposition testimony, and in that testimony, she admitted to obtaining restraining orders
for herself and Babcock against Gregg. Plaintiffs then provided authority on agency
relationships, joint ventures, and ratification, but provided no argument as to how they
applied to the case.
Attached to the Opposition were declarations by their attorney Boyd Jensen
(Jensen), Krepps, Larry, Gregg, and Kidder. Jensen declared that Gregg had been made
out to be a felon. He provided, “while that past behavior may be relevant, no foundation
was made to exclude it (CASI 211.)”
Krepps also provided a declaration. He was a leader in the church attended by
Gregg, Larry, Babcock, and Mary. Gregg asked him to be the CEO of the Foundation.
He then provided the same information as contained in the narration of the Complaint.
Krepps contacted Babcock to try to resolve the issues between Babcock and Gregg.
Babcock told him that Babcock was not allowed to speak with Gregg. Krepps stated, “I
am informed and believe that Melinda Smith was listening in because she took the phone
from Dennis and spoke to me.” Krepps tried to get her to allow Babcock to meet with
Gregg, but Smith refused to let them meet or talk. Smith told him “something like she
had him ‘on lock-down.’ ” Krepps indicated that Smith made it clear she was in control
4 Larry is Gregg’s former spouse.
7
of Babcock. Krepps further declared that Smith had never contacted him about coming
to the Premises to allow them to pick up the Personal Property. Krepps’s declaration then
provided the same information as in the narration.
Larry provided a declaration. He helped Gregg and Babcock move all of the
Personal Property into the trailer and garage on the Premises. He went with Gregg on
September 16, 2020, to try to gain access to the Premises to retrieve the Personal
Property. Babcock told him directly that Smith had to be there because it was her house
and she was in charge. Babcock finally allowed entry and the trailer was “almost”
empty. Gregg saw some of her belongings around Babcock’s house and took
photographs.
Gregg provided her own declaration. Gregg acknowledged that since 2015,
Babcock had maintained the Premises and paid all the expenses. Smith had not paid any
of the expenses. However, she insisted that Smith was the owner of the Premises. She
provided similar facts as the other declarants regarding her relationship with Babcock and
that she stored the Personal Property on the Premises. Gregg insisted that Smith came to
her house on October 22, 2019, with Babcock, and stated in their presence that Babcock
was not to speak with Gregg. She insisted that Babcock told Gregg she could not retrieve
the Personal Property because Smith would not allow it. She also made statements
regarding conversations between Krepps and Smith, and also Babcock and Larry. Smith
obtained a restraining order against Gregg.
8
Kidder’s declaration was provide with the Opposition. She lived in Texas. She
was Babcock’s cousin. She insisted that after Mary died, Smith helped Babcock with his
finances. At one point, Kidder wanted Babcock to visit her, but he said the flight was too
expensive. Kidder declared she did not believe him, and “I thought most likely it was
due to [Smith]’s control of his finances and his life. It was my observation that [Smith]
did control his life.” Kidder had been told that Smith owned the premises. She claimed
to “know” that after Gregg stored her Personal Property on the Premises, she was not
allowed to retrieve the Personal Property. Babcock was not cooperative “but it was
definitely because [Smith] had a hold over him.” She contacted Smith, but Smith got
upset with her and refused to allow Babcock to contact Gregg. She called Babcock at
one point in time and he was headed to see an attorney. He was frightened. Kidder
believed he was only going to an attorney because Smith was controlling him. She called
“protective services” about her concerns that Smith was controlling Babcock. She later
found out that Smith had obtained a restraining order against Gregg.
Exhibits to the Opposition included an excerpt from a deposition taken of Smith
on January 11, 2023. It showed that there was a restraining order against Gregg. Mary’s
will was also provided as an exhibit. The will provided that Babcock could use the
Premises during his lifetime as long as he did not remarry. He was required to “pay all
real property taxes, house fire and extended coverage insurance [and] keep the house in
good repair.” Upon his death or remarriage, the Premises would go to Smith, as the
executor of the will.
9
Plaintiffs also submitted a statement of material disputed and undisputed facts.
They disputed each of the facts in the separate statement that Smith had done nothing
with the Personal Property and had no control over the items.
D. EVIDENTIARY OBJECTIONS AND REPLY
Smith filed evidentiary objections against the Opposition. Objections 1 through 8
were to portions of the declaration provided by Krepps. The objections were on the
grounds of hearsay, lack of personal knowledge, speculation, and lack of foundation.
Objections 1 through 4 and 8 referred to Krepps’s statements regarding conversations
between Gregg and Babcock. This also involved his statement that he “learned” that
Mary had placed in her will that Babcock could stay in the Premises until he remarried.
He was “informed” that Babcock told Smith that Babcock was going to marry Gregg, and
Smith went to Gregg’s house to tell Smith to stay away from Babcock. It also included
objections to statements about the events when Gregg and Larry went to the Premises to
try to see the Personal Property. Objections 5 through 7 were based on Krepps’s direct
conversation with Smith about letting Babcock talk to Gregg, that she had Babcock in
“lock-down,” and Krepps’s statement that it was clear Smith was in control of Babcock.
Objections 9 and 10 involved Larry’s declaration. Smith objected on the grounds
of hearsay, lack of personal knowledge, speculation, and lack of foundation. Smith
objected that Larry could not attest to information he overheard about the Personal
Property. Smith also objected to Larry’s conversation with Babcock in which Babcock
claimed that the Premises belonged to Smith and that he could not do anything without
her permission.
10
Objections 11 through 23 involved objections to Gregg’s declaration. Objection
11 involved Gregg’s statement that the declaration was her “solemn testimony to the
following facts” given under penalty of perjury. Objections 12 through 23 involved
statements made by Babcock to Gregg in regard to what Smith would tell him, a text
message from “Ted Spencer” about Smith, discussions Krepps had with Babcock, and
actions taken by Kidder and Smith obtaining a restraining order against Gregg and
showing fellow church members.
Objections 24 through 30 involved Kidder’s declaration. Once again Smith
objected on the grounds of hearsay, lack of personal knowledge, speculation, and lack of
foundation. The objections involved all statements made by Kidder as to her belief that
Smith was controlling Babcock.
Smith also filed a reply to the Opposition. Smith complained the Opposition was
“littered” with unsubstantiated and irrelevant facts; it failed to address the legal issue that
Smith had no control over the Premises where the Personal Property was stored. Smith
argued that plaintiffs had failed to cite to any evidence in their statement of facts.
Further, they failed to provide a separate statement of facts so that Smith could properly
respond to any new material facts presented in the Opposition. Additionally, plaintiffs
had not raised the issues of agency, ratification, or joint venture in the Complaint and
could not raise them in the Opposition without filing an amended complaint.
11
E. TRIAL COURT RULING
The trial court issued a tentative ruling on the Motion. The trial court reviewed
the allegations in the Complaint. The trial court first addressed the evidentiary
objections. It found that a majority of the statements made in the declarations submitted
by Krepps, Gregg, Larry, and Kidder were inadmissible hearsay and/or the declarants
lacked personal knowledge of the facts. It found, “Only [Smith]’s admissions in a
purported phone conversation with Larry are admissible based on his personal knowledge
and as an exception to hearsay. (Evid. Code § 1220.) SUSTAIN as to nos. 1-4, 8-10, 12-
30; OVERRULE as to nos. 5-7, 11.”
The trial court then addressed the negligence/premises liability cause of action. It
first found that premises liability did not appear to apply to the case. Plaintiffs failed to
allege a dangerous or defective condition on the Premises from which they suffered harm.
The elements of negligence were more appropriately applied. The trial court concluded
that plaintiffs could not establish that Smith owed a legal duty to them in regard to the
Personal Property. Smith presented evidence that Babcock had been the sole occupant of
the Premises where the Personal Property was stored since 2015; Smith had no control
over the Personal Property; was not involved in the moving or storage of the Personal
Property; and never exercised control over the Personal Property. Smith never instructed
Babcock as to what he should do with the Personal Property. The trial court relied on the
separate statement provided by Smith.
12
The trial court then addressed whether plaintiffs had presented admissible
evidence to show a triable issue of material fact. The trial court found, “As pointed out
by [Smith], the Opposition is littered with unsubstantiated and irrelevant facts. The only
relevant fact is whether [Smith] had control over Plaintiffs’ Personal Property or
interfered with Plaintiffs’ use of the Personal Property. However, Plaintiffs rely
primarily on purported statements by [Babcock] about [Smith]’s control over him and the
Premises. [Babcock]’s statements constitute inadmissible hearsay and cannot be relied
upon to oppose summary judgment.”
The trial court found that the only relevant evidence presented was Smith’s
statement to Krepps that she refused to allow Babcock to speak with Gregg. Further,
evidence that she obtained a restraining order for herself and Babcock against Gregg.
However, this evidence did not establish that Smith had any control over the Premises or
the Personal Property. It did not show that she blocked access to the Premises. The
evidence only established that Babcock refused Gregg and Larry access to the Premises
and Personal Property. There was no evidence Smith denied access to Gregg.
The trial court also denied the claims of agency, ratification, and joint venture as
they were not properly alleged in the Complaint. Further, there was no evidence
submitted in support of the claims.
As for the cause of action for intentional tort, the trial court found that plaintiffs
failed to allege any underlying tort. They failed to address the issue in the Opposition
and did not seek to amend the Complaint. Further, even if they tried to amend, there was
13
no intentional tort to cover the situation. There was no evidence that Smith had control
over the Personal Property.
On February 7, 2023, the matter was called for hearing and the parties presented
oral argument. The reporter’s transcript has not been provided to this court. The trial
court adopted the tentative ruling and the Motion was granted. Judgment was entered on
February 15, 2023; an amended judgment was filed on March 21, 2023. Smith was
awarded $8,867.02 in costs as the prevailing party. Plaintiffs filed a notice of appeal on
April 15, 2023.
DISCUSSION
On appeal, plaintiffs claim the trial court erred by granting Smith’s evidentiary
objections and that the Motion would not have been granted if the evidence had been
admitted. Further, plaintiffs contend the trial court improperly concluded that they could
not raise the issues of agency, mutual interest, joint venture, and ratification. Finally,
plaintiffs address the introduction of Gregg’s felony conviction for elder abuse.
A. EVIDENTIARY OBJECTIONS
Plaintiffs contend the trial court erred by granting the objections made by Smith to
the evidence presented in the Opposition, specifically the declarations of Krepps, Larry,
Gregg, and Kidder.
There is a split of authority on the proper standard of review of the trial court’s
rulings on evidentiary objections. In Pipitone v. Williams (2016) 244 Cal.App.4th 1437,
the Sixth District Court of Appeal concluded the de novo standard of review applied to
evidentiary rulings “determined on the papers and based on questions of law such as
14
hearsay.” (Id. at p. 1451.) The Pipitone court based its conclusion on Reid v. Google,
Inc. (2010) 50 Cal.4th 512. In Reid, the Supreme Court was presented with evidentiary
objections that had not been ruled on by the trial court. The Reid court applied the de
novo standard of review to evidentiary objections upon which the trial court had failed to
rule. (Reid, at p. 535; see also Doe v. SoftwareONE Inc. (2022) 85 Cal.App.5th 98, 102-
103 (Doe).) The Supreme Court reasoned, “First, because there was no exercise of trial
court discretion, the Court of Appeal had no occasion to determine whether the trial court
abused it. Second, Google expressly invited the Court of Appeal to address its
evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the
general standard of review applicable to summary judgment rulings, that any doubts as to
the propriety of granting a summary judgment motion should be resolved in favor of the
party opposing the motion.” (Reed, at p. 535.) The Supreme Court declined to address
the standard of review in those cases in which the trial court ruled on the evidentiary
objections. (Ibid.)
In Doe, supra, 85 Cal.App.5th 98, the appellate court addressed the question left
unresolved in Reid and found that evidentiary rulings are more properly reviewed for an
abuse of discretion. (Doe, at pp. 103-104; see also Twenty-Nine Palms Enterprises Corp.
v. Bardos (2012) 210 Cal.App.4th 1435, 1447.) The court reasoned, “[T]rial courts
typically rule on evidentiary objections in summary fashion, which often prevents us
from determining the precise nature (i.e., principally legal or factual) of the trial court’s
ruling. And rulings on evidentiary objections often ‘involve trial courts making
15
qualitative and sometimes equitable determinations,’ which are the sort of decisions we
typically review for abuse of discretion.” (Doe, at p. 104.)
We will follow Doe and apply the abuse of discretion standard.
1. LARRY KREPPS
First, plaintiffs insist that Krepps’s narration attached to the Complaint was
attached to the Motion, which somehow resulted in an admission by Smith that it was
properly considered evidence. The narration was similar to Krepps’s declaration attached
to the Opposition. Plaintiffs provide no legal authority for their proposition. By failing
to provide a cogent legal argument, the claim has been forfeited. (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United) [“ ‘In order to
demonstrate error, an appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record’ ”].)
Second, plaintiffs contend the trial court erred by sustaining Objections 1 through
4, and 8 to Krepps’s declaration. The trial court found that the conversations between
Gregg and Smith about Babcock attested to by Krepps were properly objected to on the
grounds of hearsay and lack of personal knowledge. Krepps also referred to Babcock’s
arrangement with Mary to stay in the Premises and the events when Gregg and Larry
went to the Premises.
“ ‘ “Hearsay evidence” is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.’ [Citation.] In other words, ‘a hearsay statement is one in which a person makes a
factual assertion out of court and the proponent seeks to rely on the statement to prove
16
that assertion is true.’ ” (Doe, supra, 85 Cal.App.5th at p. 108.) Krepps was not present
during the above discussions. He lacked personal knowledge of the conversations; it was
clearly hearsay.
Plaintiffs appear to claim that despite Krepps reporting “what he learned from
others, which was certainly hearsay,” the evidence was admissible based on his personal
knowledge and working with the parties in the Foundation and as a church leader. They
provide no legal authority for their claim that his personal knowledge of the parties is an
exception to the hearsay rule, and have waived such claim. (United, supra, 36
Cal.App.5th at p. 146.)
Objections 5 through 7 were based on Krepps’s conversation directly with Smith
about letting Babcock talk to Gregg, and that she was in control of Babcock. The trial
court did not exclude this evidence; no error occurred as to this evidence.
2. LARRY GREGG
Objections 9 and 10 involved Larry’s declaration. Smith objected that Larry could
not attest to information he “overheard” about the Personal Property. Smith also objected
to Larry’s conversation with Babcock in which Babcock claimed that the Premises
belonged to Smith and that he could not do anything without her permission. Plaintiffs
acknowledge that this was hearsay but that an exception applies. While plaintiffs discuss
different exceptions, they do not delineate the applicable exception in their argument.
17
Such failure to specify the legal basis in their argument forfeits the claim on appeal.5
(United, supra, 36 Cal.App.5th at p. 146.)
3. ANDREA GREGG
Objections 11 through 23 involved objections to Gregg’s declaration. Objection
11 involved Gregg’s statement that the declaration was her “solemn testimony to the
following facts” given under penalty of perjury. The trial court overruled this objection.
Objections 12 through 23 involved statements made by Babcock to Gregg in regards to
what Smith would tell him, a text message from “Ted Spencer” about Smith, discussions
Krepps had with Babcock, actions taken by Kidder, and Smith obtaining a restraining
order against her and showing their fellow church members. Much of this statement was
based on hearsay, lack of personal knowledge, and speculation.
Once again, plaintiffs do not provide the hearsay exceptions for the statements
made by Gregg, of which a majority involved information she obtained from other
sources. These statements were hearsay and she does not provide an exception. The
failure to provide any legal authority or analysis forfeits any claim on appeal. (United,
supra, 36 Cal.App.5th at p. 146.)
5 For the first time in the reply brief, plaintiffs address some of the exceptions to
the hearsay rule as it applied to the declarations attached to the Opposition. We generally
do not consider claims raised for the first time in the reply brief. (People v. Peevy (1998)
17 Cal.4th 1184, 1206.) Plaintiffs were well aware of the hearsay issue at the time of the
filing of their opening brief and should have raised the exceptions to give Smith an
opportunity to respond.
18
4. CHRISTINE KIDDER
Objections 24 through 30 involved statements made by Kidder. Once again Smith
objected on the grounds of hearsay, lack of personal knowledge, speculation, and lack of
foundation. The objections involved the statements made by Kidder that involved her
belief that Smith was controlling Babcock. These included statements that since he could
not fly to Texas, Smith was controlling Babcock. Further, Smith objected to statements
she knew that Gregg was never allowed on the Premises to retrieve her items. Kidder did
not explain how she knew this information. These statements involve hearsay, lack
foundation as there is no time period included, and are based on speculation.
Plaintiffs refer to lay opinion testimony of a witness but do not provide proper
argument or authority on how this was applicable to the speculative statements made by
Kidder. The remainder of Kidder’s statements rely on statements made to her by other
parties. This was properly excluded as hearsay. Plaintiffs do not provide any argument
as to the hearsay exception applicable, waiving the claim on appeal. (United, supra, 36
Cal.App.5th at p. 146.)
Based on the preceding, the trial court did not abuse its discretion by sustaining
the evidentiary objections raised by Smith.
B. MERITS OF THE MOTION
Even if the trial court improperly ruled on the evidentiary objections in this case,
admission of the testimony would not result in a more favorable outcome for plaintiffs.
“[A]n erroneous evidentiary ruling requires reversal only if ‘there is a reasonable
probability that a result more favorable to the appealing party would have been reached in
19
the absence of the error.” ’ ” (Twenty-Nine Palms Enterprises Corp. v. Bardos, supra,210 Cal.App.4th at p. 1449.)
“A motion for summary judgment is properly granted only when ‘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.’ ” (Luebke v. Automobile Club of
Southern California (2020) 59 Cal.App.5th 694, 702, fn. omitted.) “To carry its initial
burden when the motion is directed to the plaintiff’s case rather than an affirmative
defense, a defendant must present evidence that either ‘conclusively negate[s] an element
of the plaintiff’s cause of action’ or ‘show[s] that the plaintiff does not possess, and
cannot reasonably obtain,’ evidence necessary to establish at least one element of the
cause of action. [Citation.] Only after the defendant carries that initial burden does the
burden shift to the plaintiff ‘to show that a triable issue of one or more material facts
exists as to the cause of action or a defense thereto.’ ” (Id. at pp. 702-703)
“We review a grant of summary judgment de novo.” (Luebke v. Automobile Club
of Southern California, supra, 59 Cal.App.5th at p. 703.) “ ‘We independently review
the parties’ papers supporting and opposing the motion, using the same method of
analysis as the trial court. Essentially, we assume the role of the trial court and apply the
same rules and standards.’ ” (Apex Solutions, Inc. v. Falls Lake Ins. Management Co.,
Inc. (2024) 100 Cal.App.5th 1249, 1256.)
In the Complaint, plaintiffs presented three causes of action that included
negligence, premises liability, and intentional tort. “The elements of a negligence cause
of action are 1) the existence of a duty, 2) a breach of that duty, 3) injury to the plaintiff
20
caused by the defendant’s breach, and 4) actual damages.” (Romero v. Los Angeles Rams
(2023) 91 Cal.App.5th 562, 567.) “ ‘ “The elements of a cause of action for premises
liability are the same as those for negligence.” ’ ” (Nicoletti v. Kest (2023) 97
Cal.App.5th 140, 145.) “ ‘Since the existence of a duty of care is an essential element in
any assessment of liability for negligence [citations], entry of summary judgment in favor
of the defendant in a negligence action is proper where the plaintiff is unable to show that
the defendant owed such a duty of care.’ ” (Walker v. Sonora Regional Medical Center
(2012) 202 Cal.App.4th 948, 958.)
Here, the Complaint alleged that Smith had a duty to protect the Personal Property
stored on the Premises. The Motion presented that Smith had no control over the
Premises or Personal Property and could not have foreseen that it would be damaged or
removed by Babcock. Babcock had control over the Premises until he remarried. He
took responsibility for the Personal Property. Smith declared that she had no control over
the Premises and never exercised any control over the Personal Property. Smith met her
initial burden of showing that she owed no legal duty to plaintiffs.
The evidence that was presented in the Opposition, including the evidence
excluded, did not establish there was a triable issue of fact as to whether Smith had any
control over the Premises or the Personal Property. The evidence may have shown that
Smith had some control over Babcock’s finances, but it did not establish that this
extended to the Premises or the Personal Property. The will provided showed that
Babcock was in control of the Premises until he remarried. None of the evidence
presented showed that Smith had taken over control of the Premises other than Babcock’s
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statement that Smith would not allow him to let Gregg into the Premises because she was
in control of him. There was no explanation as to how Smith had taken over the Premises
when Babcock had full control under Mary’s will.
Further, there was no evidence that Smith personally blocked access to the
Premises so that Gregg could not retrieve her Personal Property. Moreover, Babcock let
Gregg access the Premises. Smith was not involved in the removal of the Property. If
Krepps’s statement is considered, Babcock told Krepps that he took the Personal Property
out of the garage and trailer. No evidence was presented that Smith had any knowledge
or control over Babcock removing the Personal Property. The trial court properly
concluded there was no triable issue of fact as to duty to support the premises liability
and negligence causes of action.
Further, as to the cause of action of intentional tort, there was no allegation of a
tort in the Complaint. Plaintiffs alleged that there was a cause of action of intentional tort
and referred to the narrative provided by Krepps. In the narrative, Krepps never refers to
an intentional tort. “Because summary judgment is defined by the material allegations in
the pleadings, we first look to the pleadings to identify the elements of the causes of
action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151,
159.) A tort, whether intentional or negligent, involves a violation of a legal duty owed
by the defendant to the person injured. (Long Beach Memorial Center v. Kaiser
Foundation Health Plan, Inc. (2021) 71 Cal.App.5th 323, 336.)
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As stated, there was no intentional tort identified in the pleadings. Further, as set
forth, ante, there was no evidence of a duty of Smith to protect the Personal Property
even considering that she may have exercised some control over Babcock. Since there
was no triable issue of fact on the causes of action of negligence, premises liability and
intentional tort, summary judgment was properly granted.
C. AGENCY, MUTUAL INTEREST, RATIFICATION AND JOINT
VENTURE
Plaintiffs contend that the trial court’s ruling is “false” in finding that the claims of
agency, mutual interest, ratification, and joint venture were not alleged in the Complaint
and were not proper grounds upon which to oppose the Motion.
“ ‘The pleadings delimit the issues to be considered on a motion for summary
judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment
need address only the issues raised by the complaint; the plaintiff cannot bring up new,
unpleaded issues in his or her opposing papers.’ ” (Laabs v. City of Victorville (2008)
163 Cal.App.4th 1242, 1253; see also Whelihan v. Espinoza (2003) 110 Cal.App.4th
1566, 1576.) “To create a triable issue of material fact, the opposition evidence must be
directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence
would show some factual assertion, legal theory, defense or claim not yet pleaded, that
party should seek leave to amend the pleadings before the hearing on the summary
judgment motion.” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; see
also Laabs, at p. 1253.)
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It is without dispute that plaintiffs only alleged the causes of action of negligence,
premises liability, and intentional tort in the Complaint and they never sought to amend
the Complaint. The Complaint and narration never presented claims of agency,
ratification, mutual interest, or joint venture. The trial court properly concluded that the
Motion could not be denied on issues not raised by the pleadings.
Plaintiffs argue on appeal that they in fact alleged agency in the form Complaint.
In paragraph 6 of the Complaint, it was stated, “The true names of defendants sued as
Does are unknown to plaintiff.” They then checked the box, “Doe defendants (specify
Doe numbers): 1 to 100 were the agents or employees of other named defendants and
acted within the scope of that agency or employment.” Also checked the box, “Doe
defendants (specific Doe Numbers):_______ are persons whose capacities are unknown
to plaintiff.”
This paragraph does not apply to Smith or Babcock as suggested by plaintiffs.
Smith was not named as a Doe. Further, the Complaint did not allege agency, mutual
interest, ratification, or joint venture as causes of action. Plaintiffs never amended to add
these claims prior to the hearing on the Motion. It is unknown if they sought to amend at
the hearing because the record of the proceedings has not been provided to this court.
The trial court properly granted the Motion finding these claims were not properly raised
in the Complaint.
D. CRIMINAL CONVICTION
Plaintiffs raise a claim in regards to the consideration of the criminal conviction
for elder abuse against Gregg that was reviewed by the trial court. They entitle the claim
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as “Summary of Evidence—Even For Felons” At one point in their argument, it appears
that they are arguing the trial court should not have considered the criminal conviction.
However, they also appear to argue that it was further evidence of Smith’s control over
Babcock. This court cannot discern what claim plaintiffs are raising. “ ‘[T]o
demonstrate error, an appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record.’ ” (Hernandez v. First
Student, Inc. (2019) 37 Cal.App.5th 270, 277.) We cannot discern the argument raised by
plaintiffs and do not address the claim.
DISPOSITION
We affirm the trial court’s order granting the motion for summary judgment.
Smith shall recover her costs on appeal as the prevailing party.
CERTIFIED FOR PUBLICATION
MILLER
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
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