Opinion
B297801
10-25-2021
DEFOREST MAPP, Plaintiff and Appellant, v. KAPPA ALPHA PSI FRATERNITY, INC., et al., Defendants and Respondents.
Traylor Law Office and Michael S. Traylor for Plaintiff and Appellant. Marrone, Robinson, Frederick & Foster, J. Alan Frederick, and Angelica A. Ramos for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC601247 Deirdre Hill, Judge. Affirmed.
Traylor Law Office and Michael S. Traylor for Plaintiff and Appellant.
Marrone, Robinson, Frederick & Foster, J. Alan Frederick, and Angelica A. Ramos for Defendants and Respondents.
CHANEY, J.
Deforest Mapp sued Boris Ricks, Samuel Knight, and three organizations associated with Kappa Alpha Psi Fraternity, Inc. seeking damages for injuries he claimed he sustained during an altercation with Ricks after a fraternity-sponsored event on the evening of November 17, 2013.
The defendants in the trial court were Ricks, Knight, Kappa Alpha Psi Fraternity, Inc., the Western Province of Kappa Alpha Psi Fraternity, and the Long Beach Inglewood South Bay Alumni Chapter of Kappa Alpha Psi Fraternity. Because the Kappa entities' interests are aligned and their distinctions are not meaningful for purposes of this appeal, we refer to the entity defendants collectively as Kappa or the Kappa defendants. Mapp dismissed Knight from the action on September 15, 2016. Mapp dismissed Ricks from the action in May 2019.
The trial court granted summary judgment for the Kappa defendants on various grounds related to the first amended complaint's (FAC) six causes of action. Mapp appealed from the trial court's judgment.
We agree with the trial court's analysis of the Kappa defendants' motion for summary judgment and will affirm the trial court's judgment.
BACKGROUND
Mapp joined Kappa Alpha Psi Fraternity's Long Beach Inglewood South Bay Alumni Chapter in December 2011. For the next two years, Mapp participated in the alumni chapter's activities, including as chair of the chapter's multimedia committee, part of a program called "Kappa League," and as a member of the chapter's intake committee, which was the committee responsible for onboarding new chapter members. In 2012 and 2013, Ricks was the chapter's "polemarch," which the chapter's bylaws explain is the chapter's chief executive officer.
Though Mapp recalls his first "direct contact" with Kappa was at an informational meeting as a college junior in 1990, Mapp was not a member of Kappa in either college or graduate school. He first became a member of Kappa when he joined the organization's local alumni chapter at age 41 in 2011.
The FAC alleges that on the evening of November 17, 2013, the chapter held a Kappa League event at Morningside High School in Inglewood. Leading up to the event, however, the FAC alleges that Ricks and Mapp disagreed about the program. After the event, as the two discussed the program, the FAC alleges that Ricks physically attacked Mapp.
According to the FAC, Mapp notified Knight, who was then serving as the polemarch of the Western Province of Kappa Alpha Psi Fraternity, about the incident. Knight initiated an investigation and appointed an investigator who concluded, in essence, that there was no evidence to support the allegations against Ricks. According to the FAC, the investigator concluded that Ricks" 'could have shown better general supervision and [l]eadership, '" and that doing so might have prevented or mitigated the November 17, 2013 incident. The investigator recommended that the alumni chapter undertake education and training initiatives for new members to prevent future incidents. The FAC alleged that the fraternity did not remove Ricks as polemarch of the alumni chapter and instead suggested as part of its resolution of the matter that Ricks and Mapp should" 'put this matter aside and work toward the betterment'" of the fraternity.
Mapp filed a complaint against Ricks, Knight, and the Kappa defendants on November 16, 2015, alleging causes of action for negligent supervision and retention, negligent infliction of emotional distress, intentional infliction of emotional distress, assault, and battery. The trial court sustained most of the defendants' demurrers, granted motions to strike portions of the complaint, and granted Mapp leave to amend.
On July 13, 2016, Mapp filed the FAC. In it, he alleged causes of action for (1) negligent supervision, training, and/or review, (2) negligent hiring and retention, (3) negligence, (4) intentional infliction of emotional distress, (5) assault, and (6) battery. The FAC alleged that when Ricks assaulted Mapp, Ricks was acting in his capacity as polemarch of the alumni chapter and that the Kappa defendants "knew that [Ricks] had a violent temper, that he had threatened and/or assaulted, and/or battered other members in the past, and that he was unfit to serve . . . in any . . . leadership position" because he posed a risk of harm to other Kappa members and to the general public.
The FAC also alleged that Kappa had "authorized and/or ratified" the alleged attack, and that Kappa's investigation after the attack and failure to take any action against Ricks caused Mapp severe emotional distress.
In its first (negligent supervision, training, and/or review), second (negligent hiring and retention), and third (negligence) causes of action, the FAC alleged that Ricks was "acting within the scope of his duties as a [polemarch] of" the alumni chapter and was acting "as an agent, member[, ] and representative" of Kappa when he allegedly assaulted Mapp. It alleged that Kappa knew that Ricks had a violent temper, "that he had threatened and/or assaulted, and/or battered other members in the past, and that he was unfit to serve as [polemarch] or in any other leadership position." The fourth cause of action (intentional infliction of emotional distress) alleged that Kappa's investigation and ratification of the incident was a "sham," that it was "intended to 'discipline' [Mapp], to preserve the status quo, and to intimidate [Mapp] and others from complaining about hazing and/or violence couched as 'discipline' within [Kappa]," all of which the FAC alleged was "so outrageous and shocking as to cause [Mapp] severe emotional distress . . . ." The fifth (assault) and sixth (battery) causes of action alleged that the Kappa defendants were responsible for Ricks's alleged attack based on theories of agency, respondeat superior, or ratification through the alleged sham investigation.
Kappa filed a motion for summary judgment in December 2018. The thrust of Kappa's motion was that Kappa could not be vicariously liable for Ricks's assault and battery under any theory, that Mapp's three causes of action against the Kappa defendants for negligence could not succeed because Mapp could not produce evidence that Kappa knew or should have known that Ricks presented an undue risk of harm to others, and that Mapp could not produce evidence of extreme or outrageous conduct to support his intentional infliction of emotional distress cause of action.
Mapp opposed the motion by arguing that the hearing should be continued so he could obtain additional discovery under Code of Civil Procedure section 437c, subdivision (h). On the merits, Mapp argued that the Kappa defendants had not met their summary judgment burden and had thus failed to shift any summary judgment burden to Mapp. Mapp also argued that the motion for summary judgment ignored bases for vicarious liability other than the employee-employer relationship. Mapp invoked Regents of University of California v. Superior Court (2018) 4 Cal.5th 607 (Regents) to argue that Kappa had a "special relationship" with Ricks and Mapp such that Kappa had a duty to" 'control, warn, or protect'" that Kappa had breached. To support his opposition, Mapp filed his own declaration and accompanying exhibits.
In support of their summary judgment reply, Kappa filed, among other things, objections to almost all of the Mapp declaration and a variety of statements in the memorandum of points and authorities Mapp filed opposing the motion for summary judgment.
The trial court held a hearing on Kappa's motion for summary judgment on April 5, 2019. The trial court rejected Mapp's request for a continuance to obtain more evidence to oppose Kappa's motion for summary judgment. The trial court overruled Kappa's objections to statements in Mapp's opposition to the motion for summary judgment (on the ground that the objections were to argument rather than evidence) and sustained all but one of Kappa's objections to the Mapp declaration.
The trial court granted the motion for summary judgment on the merits. The trial court concluded that even though the Kappa defendants had not met their summary judgment burden with regard to Mapp's agency theory, "Ricks['s] purported 'misconduct' was not required or incidental to [his] duties as [polemarch], and his conduct was not reasonably foreseeable." The trial court cited undisputed evidence that Kappa's Code of Conduct and Rules of Disciplinary Procedures both forbade any acts of physical punishment and that Kappa had not been "aware of any prior threats or acts of violence by Ricks."
The trial court also concluded that plaintiff had provided no evidence that Kappa's investigation of the alleged attack was a sham "or to show that defendants did not act reasonably." Based on plaintiff's failure to produce any evidence in opposition to the motion, the trial court concluded that the Kappa defendants had "met their burden of showing that plaintiff cannot establish ratification."
Based on those conclusions, the trial court granted Kappa's motion for summary judgment. The trial court entered judgment for the Kappa defendants (Mapp had already dismissed Ricks and Knight) on May 20, 2019.
Mapp filed a timely notice of appeal.
DISCUSSION
A. Summary Judgment
"Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.] As applicable here, moving defendants can meet their burden by demonstrating that 'a cause of action has no merit,' which they can do by showing that '[o]ne or more elements of the cause of action cannot be separately established . . . .' [Citations.]" (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253 (Nazir).)
"[I]n moving for summary judgment, a 'defendant . . . has met' his 'burden of showing that a cause of action has no merit if' he 'has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. 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.'" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel Nat. (2000) 24 Cal.4th 317, 334.) "[W]e must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law . . . .' [Citation.] Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff's claims." (Nazir, supra, 178 Cal.App.4th at p. 253.) As in the trial court, on review "[w]e accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show' "specific facts,"' and cannot rely upon the allegations of the pleadings." (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805, italics added.)
Where, as here, the appellant has not challenged trial court rulings sustaining objections to evidence offered in opposition to a motion for summary judgment, the appellant forfeits "any issues concerning the correctness of the trial court's evidentiary rulings" and "[w]e therefore consider all such evidence to have been properly excluded." (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015 (Lopez); see Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1113.)
"On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.] 'The fact that we review de novo a grant of summary judgment does not mean that the trial court is a potted plant in that process.' [Citation.] '[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.'" (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.)
B. Analysis
1. Special Relationship
Mapp's sole contention regarding Kappa's liability on the three negligence causes of action and the assault and battery causes of action is that because he argued that there was a special relationship between Kappa and its members as that term is defined in Regents, supra, 4 Cal.5th 607, the summary judgment burden never shifted to him.
We note as an initial matter that Mapp's argument relies on the legal premise that the defendant's burden on summary judgment is to "eliminate[ ] the entirety of [a] cause of action." We disagree with that premise. As the Kappa defendants point out in their briefing, and as both the cases and the summary judgment statute make clear, "[a] cause of action has no merit if . . . [¶] . . . [o]ne or more of the elements of the cause of action cannot be separately established." (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 849.)
Mapp's argument also relies on an incorrect factual premise. Mapp's briefing assumes that the trial court concluded that Ricks was neither an employee nor an agent of the Kappa defendants. Mapp posits that the trial court erred because it failed to consider a different theory of vicarious liability. We also reject this premise. Indeed, in its order granting the Kappa defendants' motion for summary judgment, the trial court expressly concluded that whether Ricks was an agent of the Kappa defendants was a triable issue: "Defendants have not met their burden of showing that plaintiff cannot establish that Ricks was an agent."
What the trial court concluded-and what Mapp neither raises nor addresses on appeal-was that even if Ricks was acting as Kappa's agent, Mapp had not provided any evidence that Ricks's alleged conduct was foreseeable, and therefore Kappa could not be liable for the alleged attack under any theory.
Although Mapp has neither raised nor discussed foreseeability in any context, we recognize that the term has distinct applications as between Mapp's causes of action for direct negligence against the Kappa defendants and his causes of action alleging the Kappa defendants' vicarious liability for Ricks's alleged assault and battery. (See Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499, 505 (Purton).) The trial court concluded that Ricks's alleged conduct was not foreseeable in either context.
"Foreseeable" in the context of vicarious liability turns on whether the conduct was essentially an outgrowth or function of the "employer's" business "or, in a general way, foreseeable from the employee's duties." (Purton, supra, 218 Cal.App.4th at p. 505 .) For purposes of Mapp's negligence causes of action, the trial court explained that foreseeability generally meant that the allegedly negligent entity-Kappa-must have had either knowledge or constructive knowledge" 'that hiring the employee created a particular risk or hazard and that particular harm materializes.'" (Quoting Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)
We again note that Mapp has neither raised nor addressed in any manner the trial court's foreseeability determinations in either context. Mapp's sole argument here regarding the first, second and third (negligence) causes of action and the fifth and sixth (assault and battery) causes of action is that the allegation of a "special relationship" precludes the Kappa defendants from ever shifting the summary judgment burden in this matter.
We disagree.
In Regents, our Supreme Court held that "universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities." (Regents, supra, 4 Cal.5th at p. 613.) In Regents, the Supreme Court considered a university's duty to "control, warn, or protect" based on the university's relationship with" 'either the person whose conduct needs to be controlled or [with] . . . the foreseeable victim of that conduct.'" (Id. at p. 619.)
The case explored at length the relationships between universities and their students in the context of the "special relationship" defined by the Restatement Third of Torts. (Regents, supra, 4 Cal.5th at p. 620.)
As explained below, we need not and do not consider whether the Regents "special relationship" existed between Kappa and its members. Nevertheless, we note that the Supreme Court in Regents carefully considered and tied its conclusions in that matter to the "unique features of the collegiate environment" that do not necessarily present themselves between a fraternity alumni chapter and its middle-aged members. (Regents, supra, 4 Cal.5th at pp. 613, 622-627.)
The lesson in Regents applicable here is that the university was directly negligent in its failure to either control the attacker or to warn or protect the victim from violence that the university could have reasonably foreseen. (Regents, supra, 4 Cal.5th at pp. 630-631.) "The duty we recognize here is owed not to the public at large," the Supreme Court said, "but is limited to enrolled students who are at foreseeable risk of being harmed by a violent attack while participating in curricular activities at the school. Moreover, universities are not charged with a broad duty to prevent violence against their students. Such a duty could be impossible to discharge in many circumstances. Rather, the school's duty is to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety." (Id. at p. 633, original italics.)
We also note that Regents had no bearing on any vicarious liability theory. To the extent Mapp relies solely on the "special relationship" theory to challenge summary judgment, he has forfeited any challenge regarding causes of action based on vicarious liability-assault and battery.
As did the trial court's, our analysis here turns on the foreseeability of Ricks's alleged attack-a finding that Mapp does not challenge, but that we nevertheless examine. In support of their motion for summary judgment, the Kappa defendants produced evidence that, as the trial court stated, "Kappa was not aware of any prior threats or acts of violence by Ricks." The declaration of Kevin Wheaton, another alumni chapter member who had known Ricks for 14 years, stated that before the November 17, 2013 incident, he "was never made aware of any prior threats of violence or violent conduct by Ricks." Knight, the polemarch of Kappa's Western Province at the time (and initially a codefendant in this matter), declared that before the November 17, 2013 incident, he "was never made aware of any prior threats of violence or violent conduct by Mr. Ricks." The declaration of Raymond Ivey, Jr., who had been a Kappa member for 15 years and had known Ricks for 11 years stated that before November 17, 2013, he "was never made aware of any prior threats of violence or violent conduct by Ricks." Perry Amos had been a Kappa member for 39 years and had known Ricks for 10; his declaration said the same thing. And Douglas Brown had been a Kappa member for 39 years and had known Ricks for 7 years. His declaration also said that he had never been made aware of any threats of violence or violent conduct by Ricks before November 17, 2013.
Kappa also offered deposition testimony from Mapp to support its foreseeability argument. According to Mapp, Ricks had been the co-chair of the alumni chapter's "intake" process when Mapp applied for membership. Based on Mapp's familiarity with Ricks from that process, Mapp testified, he twice voted for Ricks to be the alumni chapter's polemarch. By the time of the November 17, 2013 incident, Mapp testified that he had known Ricks for two years, and Mapp "ha[d] no knowledge of [Ricks] doing any hazing" and "ha[d] no knowledge of him being in any kind of altercation" with other members or otherwise.
Kappa produced all of this evidence to support its argument that Ricks's alleged conduct on the evening of November 17, 2013 was not foreseeable. That evidence was sufficient to shift the burden to Mapp to produce either conflicting evidence or evidence that would otherwise indicate that Ricks's conduct was foreseeable. The trial court concluded that Mapp did not produce any evidence in response. Mapp has also not identified any responsive evidence on appeal.
Again, we need not and do not decide whether Kappa, Mapp, and Ricks were in a "special relationship" as Regents explored that concept. That is because regardless of whether a special relationship existed, Mapp has not provided evidence that Ricks's alleged attack was foreseeable. Absent foreseeability, the duty Regents created has no application. We agree with the trial court's conclusion that the Kappa defendants are entitled to judgment on Mapp's first, second, third, fifth, and sixth causes of action.
2. Intentional Infliction of Emotional Distress
Mapp contends that the trial court erred when it granted the Kappa defendants' motion for summary judgment as to the cause of action for intentional infliction of emotional distress because the trial court did not consider all allegations in the FAC. Specifically, Mapp argues that the trial court did not consider its allegations that Kappa, "as an organization, practiced a 'cultur[e] of hazing' and that such culture was 'pervasive, '" and that the trial court did not consider ratification of Ricks's acts as an act warranting intentional infliction of emotional distress liability.
Mapp's contentions are factually incorrect. The trial court's order granting summary judgment listed the elements of the cause of action for intentional infliction of emotional distress. The trial court then identified the allegations in the complaint related to that cause of action: "Plaintiff alleges that defendants, acting as both the fraternity and as its officers and managing agents, owed plaintiff a duty of care to not intentionally cause plaintiff mental and emotional harm. Defendants breached their duty of care to plaintiff when they subjected plaintiff to violent physical abuse, a sham investigation process, and/or ratified [Ricks's] conduct after the fact through an investigation that resulted in no discipline brought by any Kappa entity or Knight upon Ricks. [Citation.] In part, because [the Kappa defendants] have a policy and practice to essentially 'look the other way' when physical discipline, hazing, and/or violence is imposed upon members and instituted a culture of violence couched as 'discipline,' they are responsible for [Ricks] being in a leadership position despite their knowledge that he was unfit for the same."
Earlier in its order, under the heading "ratification," the trial court had examined the evidence related to Mapp's ratification and sham investigation arguments and concluded that the Kappa defendants had produced evidence sufficient to shift the summary judgment burden to Mapp on those theories. "Defendants present evidence that after the [November 17, 2013] incident, [Mapp] called [Knight], the [Western Province polemarch] at the time, who asked plaintiff to submit a written statement. [Citation.] Knight initiated the investigation process by assigning [a Kappa member] to investigate the incident pursuant to the [Kappa] Code of Conduct and Code of Disciplinary Procedures. [Citation.] Knight requested a response from [the investigator] with findings from his investigation no later than December 20, 2013. [Citation.] Knight provided [the investigator] with names and contact information for some potential members who might have information about the events leading up to or following the alleged incident. [The investigator] interviewed [Mapp], Ricks, [and several other members]. [Citation.] Upon request, [Mapp] provided additional materials, including the police report, to be considered as part of the investigation to Knight and [the investigator.] [Citation.] [Mapp] thanked Knight multiple times for 'providing a safe space for this matter to be properly discussed and investigated.' [Citation.] [The investigator] concluded that the alleged incident lacked sufficient evidence to find that Ricks had violated the Code of Conduct and Code of Disciplinary Procedures based on telephonic interviews, statements, and the fact that [the] local law enforcement agency did not file charges for the alleged crime. [Citation.] The investigation concluded that Ricks could have shown better general supervision and leadership to [Mapp]. Knight recommended suggestions for better communication and training to help avoid any further conflicts. [Citation.]"
Based on that evidence, the trial court concluded that Kappa had met its initial summary judgment burden to demonstrate that Kappa's investigation was not a sham and that its actions vis-à-vis Mapp and the investigation did not rise to the level of "outrageous" required to support a cause of action for intentional infliction of emotional distress. (See McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1515.)
Based on that same evidence, we agree. The evidence Kappa provided in support of its motion shifted the burden to Mapp to produce some evidence that Kappa's conduct was outrageous to the point of being actionable.
Mapp produced no evidence in the trial court, nor does he identify any evidence here. Here, he points only to allegations in the FAC that he incorrectly states the trial court's analysis did not consider. The trial court expressly did consider each of Mapp's theories in its analysis.
The only evidence Mapp produced to oppose the motion for summary judgment was his own declaration and several exhibits. After the trial court ruled on Kappa's objections to Mapp's declaration and its exhibits, however, almost none of the declaration survived, and no evidence survived that would suggest the Kappa defendants' conduct rose to the level of actionable as intentional infliction of emotional distress. Mapp did not challenge the trial court's rulings on Kappa's objections to his declaration and its exhibits, and consequently Mapp has produced no evidence in opposition to the Kappa defendants' motion. (Lopez, supra, 98 Cal.App.4th at pp. 1014-1015.) And allegations from the FAC are not evidence for purposes of opposing a motion for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 849.) We will affirm the trial court's order as it relates to the fourth cause of action.
C. Mapp's Punitive Damages Arguments
Because we agree with the trial court's conclusion regarding the FAC's causes of action, we do not separately address Mapp's punitive damages arguments. "[A] claim for punitive damages is merely an additional remedy that is dependent on a viable cause of action for an underlying tort." (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 429, fn. 3.) Absent a cause of action to support a claim for punitive damages, the punitive damages allegations themselves have no foundation.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: ROTHSCHILD, P. J., BENDIX, J.