Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. SC087785, Richard Neidorf, Judge.
Law Offices of Marian H. Tully and Marian H. Tully; Stoll, Nussaum & Polakov, Brian Nelson, Robert J. Stoll, Jr.; Jacobs, Jacobs & Eisfelder and Stanley K. Jacobs for Plaintiff and Appellant.
Morris Polich & Purdy, Jeffrey S. Barron and Dean A. Olson for Defendants and Respondents.
ZELON, J.
This appeal arises out of a party gone awry. Appellant William Settle (“Settle”) was a guest at a party held at the home of David and Joanne Braff and hosted by their youngest son, Joseph. At the time of the party, David and Joanne were no longer residing in the home and had left the property in the care of their three children -- Samuel (then age 22), Rachel (then age 20), and Joseph (then age 18). Without the consent of his parents or older siblings, Joseph invited a group of high school friends and other acquaintances to the Braff residence to celebrate the eighteenth birthday of a friend. During the course of the party, Settle (then age 30) was severely injured when another partygoer, James Dennis Miller (“Miller”) (then age 21), physically assaulted him. Settle thereafter brought an action in negligence against Miller and all five members of the Braff family. The trial court granted summary judgment in favor of the Braffs based on its finding that there was no duty of care owed to Settle. We conclude that, because the third party criminal assault on Settle was not reasonably foreseeable, the Braffs did not owe Settle a legal duty of care. Accordingly, we affirm.
For clarity and convenience, and not out of disrespect, we shall refer to all Braff family members by their first names.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
David and Joanne were the owners of a residential property in Santa Monica, California. When they relocated to Washington State in or about September 2004, they allowed their three children -- Samuel, Rachel, and Joseph -- to live at the Santa Monica residence. David and Joanne had house rules for their children to follow when residing at their Santa Monica home. These rules included no parties without parental supervision, no drugs, and no drinking. Joseph was 17 years old at the time his parents moved to Washington and he was permitted to stay in Santa Monica with his older siblings to complete high school. As of March 2005, Joseph was 18, Rachel was 20, and Samuel was 22.
On the evening of March 12, 2005, Joseph held a party at the Braffs’ Santa Monica residence to celebrate the eighteenth birthday of his friend, Kevin Glatt (“Glatt”). Joseph did not ask his parents for permission to have a party at their home and his parents did not authorize it. David and Joanne, who were in Washington at the time, were not aware that any party had taken place until after the fact. Joseph did advise Samuel and Rachel beforehand that he was going to have friends over that evening and they both told him it was not a good idea. Samuel specifically told Joseph that he was not allowed to do so, but Joseph decided to hold a party anyway. Both Samuel and Rachel were out to dinner with friends at the time the party began. They did not know that Joseph had decided to go forward with his plans until they returned home later that evening while the party was in progress.
The party primarily took place in a room with a pool table that was located above a detached garage in the rear of the Braff residence. Guests entered the residence through a large wooden gate with a lock on it. Joseph tried to limit access to the party by monitoring the locked gate from the pool room above and only opening it for guests that he approved. Most of the guests were Joseph’s friends from Santa Monica High School. He extended invitations to his party the day before and at another party held earlier that evening at Glatt’s house. One of the invited guests was Settle, the 30-year-old boyfriend of Glatt’s cousin. None of the Braffs, including Joseph, had met Settle prior to that evening.
At some point during the party, the gate to the Braff residence was broken or unlocked. Joseph did not know that the gate had been opened until after the party was over. However, during the course of the evening, he was aware that some uninvited people had entered the property. Joseph asked these individuals to leave the party once he became aware of their presence and they did so without incident. There was no indication that these uninvited guests were causing, or threatening to cause, any disturbance before being asked to leave.
Miller, who was then 21 years old, arrived at the party with a group of invited guests. He entered the residence through the open gate. According to Miller, he was with friends on the evening of March 12, when one of them received a telephone call from Joseph inviting them to his party. None of the Braffs knew Miller or anything about him before that evening. Joseph did not see Miller arrive at the party nor was he aware of Miller’s presence at the party until the assault on Settle.
Although Joseph was aware of a gang presence at Santa Monica High School, he did not invite any gang members to the party. None of the Braffs saw any gang members at the party and Settle could not recall seeing anyone at the party who appeared to be in a gang. Miller stated that he observed people he believed were gang members based on their dress and mannerisms acting aggressively toward other persons at the party. But there was no evidence that any of the Braffs saw these individuals. There also was no evidence that Miller was a gang member or had any gang affiliations.
Glatt testified that he assumed Miller had gang affiliations based on who he was with at the party, but acknowledged that he had no personal knowledge about whether Miller was associated with gangs.
None of the Braffs directly furnished any alcohol or drugs to guests at the party. It is undisputed, however, that there was alcohol at the party being consumed by underage guests. According to Joseph, some of the guests brought their own alcoholic beverages. One guest brought a keg of beer and Joseph directed the guest to place the keg in the pool room. Although most of the guests were under the age of 21, Joseph did not restrict anyone at the party from drinking alcohol and Joseph himself drank alcohol that evening. Settle, an adult, also had approximately two cups of beer while at the party. Miller stated that he saw a large number of teenagers at the party consuming alcohol, including hard liquor, and approximately 10 teenagers smoking marijuana. While the Braff children were aware of the underage drinking, none of them observed any marijuana or other controlled substances being consumed. Settle also did not recall seeing any drug use. In any event, there was no evidence that either Settle or Miller was intoxicated or under the influence of illegal drugs at the time of the assault.
Prior to the assault, a few neighbors called the police to complain about the party. One neighbor, Mike Bone, made two calls to the police around 10:00 p.m. to complain that teenagers were congregating near the Braff residence and appeared to be getting ready to have a party. Another neighbor, Richard Marks, called the police around 11:00 p.m. to complain about a very loud party at the residence. Mr. Marks testified that there frequently were loud parties at the Braff residence and that he and his wife generally would call the Braff children directly and ask them to be quiet. He estimated that, in the three months prior to the March 12, 2005 party, he and his wife had complained to the Braff children about loud parties at least a half dozen times. Mr. Marks thought that the party that evening was larger than the Braffs usually had and that there were 100 kids in attendance. He decided to call the police because the noise from the party was not abating, but was only getting louder. Although neighbors complained about the noise level of the party, none of their calls to the police prior to the assault mentioned any arguing, fighting, or threats of violence at the residence.
Samuel and Rachel returned to the Braff residence approximately 10 to 15 minutes before the assault on Settle. As soon as he arrived home, Samuel became aware that there was a party on the premises. He also could tell that there was alcohol at the party because he saw a number of alcoholic beverage cans littering the ground. Samuel spoke with Joseph a few minutes after he arrived and told him to send everyone home because Joseph was not allowed to have any parties at their parents’ house, particularly one with alcohol. Samuel was surprised by the amount of alcohol at the party given that Joseph and his friends were underage. He also felt that the party was beyond the scope of what anyone should be doing in high school or at a residential home. Joseph apologized to Samuel and said that he would get the guests out. Samuel then returned to the main house and was unaware of any disturbances at the party until the assault. When Rachel arrived home, she stopped by the pool room where the party was being held and said hello to Joseph and a few friends. She then retired to her room in the main house. Prior to the assault, Rachel could observe guests standing and talking on the balcony above the garage. She thought that everything appeared to be normal and that the party was under control. Other than telling Joseph to send everyone home, neither Samuel nor Rachel took any action to end the party themselves.
After speaking with his older siblings, Joseph returned to the party, but did not attempt to disband it. At that point, Joseph felt that the party was in control, that everyone was enjoying themselves, and that everything was going smoothly. He did not observe any trouble between the guests and did not believe that he had any reason to worry about the guests’ safety. Settle also was unaware of any loud arguments or physical altercations at the party prior to the assault. He could not recall hearing any complaints about the party or seeing anyone at the Braff residence that seemed out of place. Settle also could not remember “thinking anything was wrong” at the party prior to the attack or that anything about the party was “out of control.”
Approximately an hour after Settle arrived at the party, he was violently assaulted by Miller. Settle did not recall seeing Miller before the attack. He could only recall coming out of the pool room and onto the balcony, hearing a loud “hey,” and then waking up in the hospital. None of the Braffs witnessed the assault on Settle or any altercation between Settle and Miller that may have preceded the attack. Joseph was in the pool room at the time of the assault when he heard the sound of scuffling on the balcony and then people running down the stairs. Samuel and Rachel were both in the main house when they heard a commotion outside. Samuel called the police as soon as he heard that someone was hurt and Rachel helped tend to Settle while they waited for an ambulance. Police arrived on the scene within minutes of the call, shortly after 11:00 p.m. Miller later was arrested and pleaded guilty to a criminal charge of assault with a deadly weapon. He was sentenced to five years in prison.
In a declaration submitted after his guilty plea, Miller denied that he assaulted Settle and claimed that Settle was attacked by a group of gang members when the party got out of control. Joseph’s friend, Glatt, who witnessed the assault, testified that Miller initiated the attack on Settle and that other unidentified individuals then joined in. While Miller now disputes his involvement in the attack, it is undisputed that he pleaded guilty to the assault.
Prior to the assault on Settle, there had been no incidents of violence at the Braff residence and no complaints of violence on the property. However, there were prior incidents of underage drinking. When Joseph turned 18 in January 2005, he held a birthday party at the Braff residence without his parents’ permission. His guests were all classmates from Santa Monica High School and some of them brought alcohol to the party. Joseph also drank alcohol on that occasion. When the police stopped by the residence that evening, Rachel instructed the guests to find designated drivers and go home, but there was no indication that there was any fighting or violence at that party or that anyone was arrested. Although Samuel was not present on that occasion, he was aware that Joseph occasionally had high school friends over to the Braff residence who brought alcohol with them. Whenever Samuel saw Joseph or his friends drinking, he would make them pour out the alcohol because he understood that their underage drinking was inappropriate.
On June 22, 2006, Settle filed a First Amended Complaint against Miller and all five members of the Braff family, alleging the following causes of action: (1) willful negligence against David and Joanne, (2) premises liability against Miller and each of the Braffs, (3) assault and battery against Miller, (4) negligent supervision against each of the Braffs, and (5) negligence per se against each of the Braffs. On July 7, 2006, the Braffs filed a motion for summary judgment, or in the alternative, summary adjudication. Following a hearing on the motion, the trial court granted summary judgment in favor of the Braffs and entered judgment in their favor on October 20, 2006. Settle thereafter filed a timely appeal.
A default judgment was entered against Miller based on his failure to respond to the complaint. Miller is not a party to this appeal and Settle’s claims against Miller are not at issue.
DISCUSSION
I. Standard Of Review
Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Because Settle appeals from an order granting the Braffs summary judgment, we review the trial court’s ruling de novo and independently examine the record to determine whether a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing our de novo review, we must view the evidence in the light most favorable to the plaintiff as the losing party and resolve any evidentiary doubts or ambiguities in the plaintiff’s favor. (Saelzler v. Advanced Group 400, supra, at p. 768.) We do not, however, consider evidence submitted by the parties that the trial court properly excluded.
In this case, the trial court sustained the Braffs’ objections to certain evidence submitted by Settle in his opposition to the summary judgment motion. Settle has not sought review of any of the trial court’s evidentiary rulings. Accordingly, we will not consider the evidence excluded by those rulings, and we will disregard any references to the excluded evidence contained in Settle’s brief. (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 149, fn. 10; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
In moving for summary judgment, the defendant must make an initial showing that one or more elements of the alleged cause of action cannot be established by the plaintiff. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant satisfies that burden, the burden shifts to the plaintiff to establish the existence of a triable issue of material fact as to that cause of action. (Ibid.) The plaintiff “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists.” (Ibid.) Where the plaintiff fails to satisfy that burden, the defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
II. Legal Standards On Liability For Third Party Criminal Conduct
To prevail on an action in negligence, the plaintiff must show that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries suffered by the plaintiff. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Duty is an essential element of a negligence claim. “If there is no duty, there can be no liability, no matter how easily one may have been able to prevent injury to another.” (Margaret W. v. Kelley R., supra, 139 Cal.App.4th at p. 150.) The existence of a legal duty in the first instance is a question of law for the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, superseded by statute on other grounds as stated in Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 767-768.) Because the existence of a duty in turn depends on the foresee ability of the harm, foresee ability, in the context of determining duty, is also a legal question to be decided by the court. (Id. at p. 768.)
As a general rule, one has “no duty to act to protect others from the conduct of third parties.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) Therefore, where a complaint alleges injuries resulting from the criminal acts of third persons, the common law ordinarily does not impose a duty upon a defendant to control the conduct of another or to warn of such conduct. (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1079.) An affirmative duty to act may arise, however, where there is a special relationship between the parties. (Delgado v. Trax Bar & Grill, supra, at p. 235.) Among the commonly recognized special relationships that may give rise to a legal duty in a particular case is that “between a possessor of land and members of the public who enter in response to the landowner’s invitation.” (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806.)
Landowners have a general duty of maintenance to their invitees which requires them “to maintain land in their possession and control in a reasonably safe condition.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674.) This duty encompasses a responsibility “to take reasonable steps” to secure the premises against “foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Ibid.) However, a landowner is not the insurer of the safety of persons on its premises and is not required to take precautions against criminal attacks by third parties that the landowner has no reason to anticipate. (Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1099.) Even where a special relationship exists, as in the case of a landowner and invitee, the “duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.” (Ann M. v. Pacific Plaza Shopping Center, supra, at p. 676.)
In the recent past, the California Supreme Court has had occasion to consider the scope of a landowner’s duty to protect persons against the criminal acts of third parties. (See, e.g., Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1210-1211; Morris v. De La Torre (2005) 36 Cal.4th 260, 264; Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 229; Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at pp. 1141-1142; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1185, disapproved on other grounds in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19; Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670.) In deciding whether to impose a duty to protect against third party crime, the Court generally has focused its analysis on balancing the foresee ability of the criminal act against the burden of the duty to be imposed. “‘“[I]n cases where the burden of preventing future harm is great, a high degree of foresee ability may be required.” [Citation.]’” (Ann M. v. Pacific Plaza Shopping Center, supra, at p. 678.) For instance, heightened foresee ability is required to find that the scope of a landowner’s duty of care includes the hiring of security guards. (Sharon P. v. Arman, Ltd., supra, at pp. 1190-1191; Ann M. v. Pacific Plaza Shopping Center, supra, at pp. 678-679.) Such a high degree of foresee ability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises or at substantially similar establishments in the immediate proximity. (Ibid.) “‘“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 foresee ability may be required.” [Citation.]’” (Ann M. v. Pacific Plaza Shopping Center, supra, at pp. 678-679.) In such cases, a landowner may have no obligation to provide security guards or undertake other burdensome measures, but may still owe a duty of care to invitees to take simple, minimally burdensome steps to protect against crime that is reasonably, rather than highly, foreseeable. (Morris v. De La Torre, supra, at pp. 270-271; Delgado v. Trax Bar & Grill, supra, at pp. 242-243.)
In addition to foresee ability, as balanced against the burden on the defendant, other factors that may be considered in determining the existence and scope of a duty in a particular case include (1) the degree of certainty that the plaintiff suffered injury, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the moral blame attached to the defendant’s conduct, (4) the policy of preventing future harm, and (5) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.) As our Supreme Court has recognized, “[t]hese 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 foresee ability” (Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at p. 1190, fn. 2.) Ultimately, however, “‘[t]he most important of these considerations in establishing duty is foresee ability’” (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 237, fn. 15.)
Yet regardless of whether a heightened or lesser degree of foresee ability is required, “‘[t]he dispositive issue remains the foresee ability of the criminal act. Absent foresee ability of the particular criminal conduct, there is no duty to protect the plaintiff from that particular type of harm.’ [Citation.]” (Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 431.) Foresee ability is thus a “crucial factor” in determining the existence of a legal duty. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 676.) Moreover, whether heightened or reasonable, foresee ability must be measured by what the defendant actually knew. (Margaret W. v. Kelley R., supra, 139 Cal.App.4th at p. 156; Romero v. Superior Court, supra, 89 Cal.App.4th at p. 1084.) “It is not enough that the harm be merely conceivable.” (Margaret W. v. Kelley R., supra, at p. 160, fn. 27.) The defendant must have actual knowledge of facts that would make the crime against the plaintiff sufficiently foreseeable under the requisite standard, and therefore, give rise to a legal duty of care. (Margaret W. v. Kelley R., supra, at pp. 156-157; Romero v. Superior Court, supra, at pp. 1083-1084.) Applying these principles to the present case, we affirm the trial court’s grant of summary judgment in favor of the Braffs.
III. No Legal Duty To Prevent The Third Party Criminal Assault
Settle contends that the Braffs owed him a legal duty of care because the criminal assault committed by Miller was reasonably foreseeable. In making this argument, Settle asserts that the heightened foresee ability standard, which generally requires proof of prior similar criminal acts, does not apply here because the burden on the Braffs was not to provide security guards or other burdensome protective measures. Rather, Settle contends, the burden on the Braffs was to take simple, minimally burdensome steps such as obeying the house rules against unsupervised parties, permitting only invited guests onto the premises, sending the guests home when the party got out of control, and calling the police if it proved difficult to disband the party. Settle argues that, because the Braffs’ burden was minimal, the assault only had to be reasonably (rather than highly) foreseeable. He further asserts that such foresee ability was shown here because where there is a party with inadequate supervision, underage drinking, illegal drugs, and gang members, violence at the party is reasonably foreseeable.
In determining whether the Braffs owed Settle a legal duty of care, we need not decide whether the burden of preventing the criminal assault on Settle was substantial or minimal, and thus, whether a heightened or reasonable degree of foresee ability must be shown. Even if we assume that the burden on the Braffs was minimal and apply a reasonable foresee ability standard, we still must conclude that Miller’s criminal attack on Settle was not reasonably foreseeable. Accordingly, there was no legal duty of care.
Settle tries to demonstrate foresee ability primarily through the testimony of third party witnesses, particularly Miller. Relying on such testimony, Settle characterizes the party at the Braff residence as completely out-of-control and replete with illegal drugs, underage drinking, and dangerous gang members. He contends that, under such circumstances, the likelihood of violence was foreseeable. But foresee ability, whether heightened or reasonable, must be based on what the Braffs, as the defendants, actually knew. (Margaret W. v. Kelley R., supra, 139 Cal.App.4th at p. 156; Romero v. Superior Court, supra, 89 Cal.App.4th at p. 1084.) It may not be based on what the criminal assailant, Miller, knew or on what was merely conceivable. (Margaret W. v. Kelley R., supra, at pp. 156-158.) Here, the undisputed evidence demonstrates that the Braffs did not have actual knowledge of facts that would make Miller’s assault on Settle even reasonably foreseeable.
To begin with, none of the Braffs witnessed the assault on Settle or any physical confrontation between Miller and Settle that may have preceded the attack. The elder Braffs, David and Joanne, were out of state at the time of the assault and were unaware that any party was taking place. Samuel and Rachel were present at the Braff residence at the time, but both were inside the property’s main house and were unaware of any disturbance at the party until after the assault had occurred. Joseph was in the closest proximity to the assault as he was standing in the pool room where the party was being held, but he did not witness the attack occurring on the balcony outside and did not become aware of the assault until he heard the sound of scuffling and people running from the area.
In addition, none of the Braffs were aware of any dangerous propensities of Miller. In fact, none of the Braffs had ever met Miller before that evening or knew anything about him. Joseph did not see Miller arrive at the party nor was he aware of Miller’s presence at the party until the assault on Settle. (See, e.g., Romero v. Superior Court, supra, 89 Cal.App.4th at pp. 1086-1087 [homeowners did not owe legal duty to minor guest who was sexually assaulted on their premises where they lacked actual prior knowledge of attacker’s assaultive propensities]; Margaret W. v. Kelley R., supra, 139 Cal.App.4th at pp. 158-160 [homeowner did not owe legal duty to minor guest who was sexually assaulted while under her supervision where homeowner did not know any of the assailants or anything about them].)
Moreover, none of the Braffs invited any gang members to the party or observed any gang members at the party. While Miller saw people that he believed were gang members based on their dress and mannerisms, there was no evidence that any of the Braffs were aware of the presence of these individuals on the premises. There also was no evidence that either Miller or Settle was affiliated with gangs or that Miller’s assault on Settle was in any way gang-related. The Braffs’ generalized knowledge that gang members attended the same high school as Joseph does not make an assault by a non-gang member against another non-gang member reasonably foreseeable. (Anaya v. Turk, supra, 151 Cal.App.3d at pp. 1100-1101 [defendants’ generalized knowledge that guest on their premises was an ex-convict was insufficient to show that guest’s criminal assault on plaintiff was reasonably foreseeable].)
With respect to the presence of drugs and alcohol at the party, it is undisputed that none of the Braffs directly furnished any alcohol or drugs to guests. Additionally, none of the Braffs were aware of the use of any controlled substances at the party. The evidence does establish that the Braff children were aware of underage drinking, and that even though Joseph did not personally furnish alcohol to his high school friends, he did not restrict anyone from bringing their own alcohol or drinking beer from the open keg. However, the fact of underage drinking at the party, while certainly inappropriate, does not demonstrate reasonable foresee ability under the circumstances of this case. Neither Miller nor Settle was underage. At the time of the party, Miller was 21 years old and Settle was 30 years old. There also was no evidence that either Miller or Settle was intoxicated or under the influence of any illegal drugs when the assault occurred. Indeed, by his own admission, Settle is not contending that his injuries resulted from the serving of alcohol to any person at the party, regardless of age.
Furthermore, prior to the assault on Settle, there had been no incidents of fighting or violence at the Braff residence. Although the absence of prior similar criminal acts is generally only dispositive under a heightened foresee ability standard, it still is a factor that may be considered in assessing reasonable foresee ability (See, e.g., Rinehart v. Boys & Girls Club of Chula Vista, supra, 133 Cal.App.4th at pp. 434-435 [third party criminal conduct on landowner’s premises was not reasonably foreseeable where there was no evidence of prior similar acts].) In this case, there was no evidence of prior acts of violence at the Braff residence or complaints of violence on the property. While it is undisputed that there was underage drinking at the residence prior to the March 12, 2005 party, there is nothing in the record to suggest that such drinking ever resulted in an incident of physical violence. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 307-308 [absent evidence of prior acts of violence or a propensity for violence, landlord’s knowledge that tenant abused alcohol and possessed firearms did not make tenant’s shooting of guest on premises reasonably foreseeable].) In sum, the record is devoid of any facts that would have put the Braffs on notice that the criminal assault on Settle was reasonably foreseeable, and thus, imposed a duty on the Braffs to prevent the assault from occurring.
Settle points to an incident a few years earlier where a Santa Monica High School student known to the Braffs was killed when a party held at a different residence got out of control. However, there was no evidence that Miller, Settle, or any of the Braffs attended that party or was involved in that prior incident of violence. Nor was there any evidence that the student’s unfortunate death at that party was related to underage drinking.
IV. No Legal Duty To Respond To An Imminent Or Ongoing Criminal Assault
Settle also contends that the Braffs had a duty to respond to events unfolding in their presence by undertaking reasonable, minimally burdensome measures to protect Settle from the imminent criminal attack that he faced. Specifically, Settle argues that, once Joseph was aware that uninvited guests were entering the premises and was instructed by Samuel to send everyone home, Joseph should have taken steps to end the party. Settle also asserts that, once Samuel and Rachel arrived home and became aware that there was an unsupervised party with underage drinking on the premises, they should have disbanded the party themselves or called the police for assistance. Settle contends that the Braffs instead allowed the party to continue unabated, and ultimately, to get out of control.
It is settled law that where a landowner has actual notice of an impending or ongoing criminal assault, it has a legal duty to take reasonable and minimally burdensome measures to avoid the imminent danger to its guests. Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 245.) For instance, a bar owner may have a duty to maintain a physical separation between a group of combative patrons where the owner perceives that a fight is imminent. (Id. at pp. 245-246.) Likewise, a business proprietor may have a duty to call 911 to summon aid for an invitee where its employees are able to observe a criminal attack on the invitee occurring in their presence. (Morris v. De La Torre, supra, 36 Cal.4th at pp. 277-278.) In this case, however, the evidence fails to establish that the Braffs had any notice of an imminent or ongoing criminal assault.
As discussed above, it is undisputed that none of the Braffs witnessed the assault on Settle or any confrontation between Miller and Settle that may have triggered the attack. It is also undisputed that none of the Braffs were aware of any arguments, fighting, or threats of violence at the party prior to the assault. Samuel and Rachel both testified that the first time they became aware of any disturbance at the party was when they heard a commotion from their location in the main house. At that point, the assault on Settle had already occurred. Joseph testified that, prior to the assault, he did not observe any trouble between the guests and believed that everything at the party was going smoothly. He did not become aware that an assault had occurred until he heard the sound of scuffling outside and people running from the area. Although Joseph was aware of the presence of some uninvited people at the party earlier in the evening, there was no evidence that these individuals were causing any disturbance at the party or that Joseph had any difficulty getting them to leave. Moreover, both Miller and Settle maintained that they were invited guests and had permission to be on the premises.
Settle notes that neighbors first called the police to complain about the party about an hour before the assault occurred. However, none of the neighbors’ calls to the police prior to the assault complained of violence or threats of violence. The calls were to complain that there was a large, very loud teenage party taking place at the Braff residence. The mere fact that the party was large and loud and full of teenagers does not demonstrate that there was a threat of imminent violence or that any such threat was known to the Braffs.
Additionally, Settle himself admitted that, prior to the assault, he could not remember “thinking anything was wrong” or that anything about the party was “out of control.” He did not recall seeing Miller at any time prior to the assault or observing anyone else at the party that seemed out of place. Settle could only recall coming out of the pool room, hearing a “hey,” and then waking up in the hospital. He had no warning of the sudden physical attack.
The evidence thus establishes that there was no notice of an imminent or ongoing criminal assault that would give rise to a legal duty on the part of the Braffs. The record also reflects that, once the Braffs became aware of the assault, they did take action to respond to the events unfolding in their presence. Samuel immediately called the police and Rachel helped tend to Settle while they waited for an ambulance to arrive. Even if it were true, as Settle suggests, that more responsible adults would have taken action to disband the party as soon as they observed the underage drinking, for purposes of determining the existence of a legal duty, the evidence does not support that a sudden criminal attack committed by one adult guest against another adult guest, neither of whom was intoxicated, was reasonably foreseeable. Under such circumstances, the Braffs did not owe Settle a legal duty of care.
In light of our conclusion that the criminal assault on Settle was not reasonably foreseeable, we find it unnecessary to discuss the other Rowland factors that may be considered in determining the existence and scope of a duty. (Rowland v. Christian, supra, 69 Cal.2d at p. 113.) Foresee ability, whether heightened or reasonable, remains a “crucial factor” in determining the existence of a duty, and it has not been established here. (Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at p. 1189; Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 676.)
V. Trial Court’s Grant Of Summary Judgment
Because there was no duty of care owed to Settle, the Braffs were entitled to summary judgment as a matter of law on the causes of action for negligence, premises liability, and negligent supervision. Duty is an essential element of each of these claims. Settle’s remaining cause of action for negligence per se does not require a prima facie showing that the Braffs owed him a common law duty of care, but rather that the Braffs violated a statute, ordinance or public regulation, thereby giving rise to a presumed duty. (Evid. Code, § 669, subd. (a)(1); Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1184-1185.) However, Settle does not argue on appeal that the Braffs violated any statute, ordinance or regulation with respect to the party held at their residence. Accordingly, any such argument has been waived. (See, e.g., Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court “‘is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record’”]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [even where appellate review is de novo, “it is limited to issues which have been adequately raised and supported in [appellant’s] brief”].) In any event, we note that, other than the criminal assault by Miller, the only illegal activity of which any of the Braffs was aware was the consumption of alcohol by minors. But Settle was not a minor at the time of the party and he is not contending that his injuries resulted from the serving of alcohol to any person. In light of these facts, we conclude that Settle failed to establish the existence of a triable issue of material fact as to any of his causes of action against the Braffs. The trial court therefore properly granted the Braffs’ motion for summary judgment and entered judgment in their favor.
Because we conclude that there is no triable issue of material fact as to the element of legal duty, we need not address Settle’s remaining arguments regarding causation and punitive damages.
DISPOSITION
The judgment is affirmed. The Braffs shall recover their costs on appeal.
We concur: WOODS, Acting P. J., WILEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution