Filed 9/22/26 Smiley v. Asrat CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DAVID SMILEY, B335046 consolidated with
B341947
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. 20STCV10279)
KIBROM ASRAT et al.,
Defendants and Respondents.
APPEALS from judgments of the Superior Court of Los
Angeles County, Cherol J. Nellon and Lisa R. Jaskol, Judges.
Affirmed.
Lew-Stevens, Steven B. Stevens; KJT Law Group, Aaron
Turchin and Caspar Jivalagian for Plaintiff and Appellant.
The Safarian Firm, Harry A. Safarian and Christina S.
Karayan for Defendant and Respondent Kibrom Asrat.
Procter, Shyer & Winter, Megan C. Winter and Veronica S.
Webb for Defendant and Respondent Shawnda Thomas.
Phillips, Spallas & Angstadt, Michael R. Halvorsen, Sandra
L. Block and Stephen S. Smyth for Defendants and Respondents
Queen Arms Homeowners Association and International Realty
& Investments.
_______________________
INTRODUCTION
Kibrom Asrat owned a unit at the Queen Arms
condominium complex. He hired David Smiley, a contractor, to
remodel his unit. Shawnda Thomas and her then-boyfriend,
Steven Thomas, lived in another unit at the complex.1 Smiley
and Steven had several incidents between them, which
eventually escalated to Steven shooting Smiley on the public
sidewalk in front of the complex. Smiley sued Steven, and the
claims against him are not at issue in this appeal. Smiley also
sued Asrat, Shawnda, the condominium homeowners’ association
(HOA), and property management company International Realty
& Investments (IRI). The trial court granted summary judgment
to each of these additional defendants, from which Smiley now
appeals.
Smiley contends Asrat promised Smiley to report Steven’s
pre-shooting violent conduct to the HOA, thereby inducing
Smiley to stay on the job, but never made the report. But the
undisputed evidence shows that the HOA already knew of
Steven’s conduct, meaning that Asrat’s failure to report was not
1 We refer to Shawnda Thomas as “Shawnda” and to
Steven Thomas as “Steven” for clarity and the reader’s ease, and
not out of any disrespect. The two were married after the
incident at issue in this lawsuit.
2
the proximate cause of Smiley’s injury. Smiley seeks to assert a
similar claim against Shawnda (who was the HOA’s president),
the HOA, and IRI based on a purported promise by Shawnda to
protect him, but Smiley’s claim fails because his complaint does
not allege Shawnda made any such promise but instead asserts
other theories of liability that Smiley has now abandoned.
Accordingly, we affirm the judgments in favor of Asrat, Shawnda,
the HOA, and IRI.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal is from the trial court’s grant of
summary judgment, we set forth the facts in the light most
favorable to Smiley, the party who opposed summary judgment.
A. Asrat Hires Smiley to Work on Asrat’s Condominium
Unit
Asrat owned unit 3 in Queen Arms, which is an eight-unit
condominium complex. Shawnda, who lived in unit 7, was the
HOA’s president and a member of its board of directors.
IRI managed the condominium complex for the HOA.
In about May of 2018, Asrat hired Smiley to remodel his
unit.
B. Steven Threatens Smiley’s Subcontractor; Smiley
Reports the Incident to Asrat, Shawnda and Another
HOA Board Member; Steven Later Threatens Smiley
Steven and Shawnda lived together in unit 7 and co-owned
the unit.
In July of 2018, Smiley’s electrical subcontractor told him
over the phone that while he was at Asrat’s unit someone
matching Steven’s description had threatened to kill him unless
he moved a pallet that was leaning against a wall outside of the
3
unit. Smiley’s son, who was working at the unit that day, heard
Steven threaten the electrical subcontractor. Smiley reported the
incident to Asrat, who told Smiley to continue working, ignore
Steven, and that he “would deal with it.”
Smiley also told Shawnda and Martin Johnson, another
HOA board member, about the threats. Shawnda told Smiley,
“you worry about your guy and I’ll worry about my guy, I’ll take
care of them.”
In August of 2018, as Smiley was talking to Shawnda and
other members of the HOA board, Steven came out of his unit
and yelled obscenities at Smiley and threatened him. Shawnda
held Steven back.
C. Steven Assaults Smiley and Asrat Hears the Incident
Take Place; Asrat Promises to Report the Incident to
the HOA and Shawnda but Does Not Do So
On December 12, 2018, Steven walked past Smiley while he
was standing on the sidewalk in front of the condominium
complex; Smiley was speaking with a plumber and talking on his
cell phone to Asrat. Steven was yelling profanities because he
believed that Smiley had left open a gate to the condominium.
Steven walked towards the gate but turned around and rushed
toward Smiley and “[swung] at [him].” Smiley was able to
subdue Steven and then allowed him to leave. After Smiley left
to go to a supply store, his son called him and said Steven told
him (the son) that the next time he saw Smiley he was going to
kill him.
Asrat heard the altercation between Smiley and Steven
because he was still on the call with Smiley. When the incident
was over, Smiley told him about it and said he did not want to
continue working on the project. Asrat owed Smiley money but
4
refused to pay. The “major part” of Smiley wanting to quit the
project was because “Asrat [was] not paying [him] and [was] not
keeping his word”; Smiley was also “frustrated” about the fight
with Steven. According to Smiley, “[Asrat] was just emphatic on
me finishing up the job” and “didn’t want to hear anything about
the fight”; “I told [Asrat] that ‘[w]e’re going to have to do
something about [Steven].’ ” Asrat responded, “ ‘Just work. Just
work. Just work. Finish up the job. You’re almost done.’ ” Asrat
promised Smiley that Asrat would talk to the HOA and to
Shawnda about what had happened with Steven. Despite his
promise, Asrat did not report the December 12, 2018 incident to
the HOA or any other resident of the condominium complex.
Asrat did not tell Smiley that Asrat had failed to make the
promised report.
Smiley considered the job site to be safe after his
December 12, 2018 altercation with Steven “[b]ecause [he] got
promised [sic] from [Asrat] saying that everything was fine.”
Steven informed Shawnda about the altercation. He said
he had told Smiley not to come around again, and Shawnda
responded that the matter was between Steven and Smiley.
D. Steven Shoots Smiley
On January 19, 2019, Steven walked past Smiley while he
was talking with Asrat on the sidewalk in front of the
condominium property. Steven went into his unit and came back
out; according to Smiley, Steven “had this look in his eyes and
[Asrat took] off running.” Steven approached Smiley, began
circling him, and then shot him. The shooting took place on the
sidewalk.
5
E. Smiley’s Lawsuit
Smiley sued Steven, Asrat, Shawnda, the HOA, and IRI.2
In his operative first amended complaint, Smiley asserted claims
for negligence and premises liability. As relevant here, Smiley’s
negligence claim alleged that Asrat, Shawnda, the HOA, and IRI
knew that Steven posed a danger to others present at the
condominium property and were aware of “[Steven’s] threats
toward [Smiley]” but “took no action whatsoever to protect
[Smiley] who, as a result, was shot by Steven.” (Capitalization
omitted.) Smiley was “a business invitee” and respondents “owed
a duty of care to [Smiley] that he not be unreasonably exposed to
dangerous persons while working at the [condominium]
property.” Respondents’ “failure to take any action to protect
[Smiley] constituted a breach of the duty of care each owed to
[Smiley].”
Smiley’s premises liability cause of action alleged that
respondents “were negligent in the use or maintenance of the
[condominium] property because [they] owed a duty to exercise
reasonable care to [Smiley], a business invitee, and failed to use
reasonable care to keep the property in a reasonably safe
condition free of dangerous residents such as . . . Steven [and]
failed to use reasonable care to discover any unsafe conditions
and to give adequate warning of anything that could be
reasonably expected to harm others.” (Capitalization omitted.)
Smiley further alleged that respondents “could have reasonably
prevented or protected [him] from the risk of serious physical
injury or death by taking affirmative action to intervene directly
2 Smiley also sued Malcolm Bennett, the owner of IRI, but
later voluntarily dismissed Bennett.
6
with Steven . . . to diffuse his unwarranted threats of violence,
call in local police, or, at the very least, warn [Smiley] that no
action was being taken with regard to Steven . . . and placing
[Smiley] on notice to cease his work at the premises until such
future time as action were [sic] taken to better protect [Smiley]
from Steven[’s] . . . illegal threats . . . as well as the subsequently
foreseeable violent acts that followed against [Smiley].”
(Capitalization omitted.)
F. Asrat’s Motion for Summary Judgment
1. Asrat’s Motion
Asrat moved for summary judgment on the ground that he
“had no duty to protect [Smiley] from unforeseeable criminal
actions of a third party that occurred on the sidewalk” over which
Asrat had no control. Asrat contended that premises liability
could not be based on incidents occurring outside of the premises
and adduced evidence he did not own or control the sidewalk
where Smiley was shot. He further contended that he “had no
control over [Steven’s] conduct . . . [and t]here was no
relationship between [him] and [Steven] that enabled [him] to
prevent the shooting.” In addition, Asrat asserted that “[he] had
no notice of prior similar criminal acts and could not foresee that
[Steven] would attempt to shoot [Smiley].” Asrat adduced
evidence that Smiley did not report Steven’s threats to the police
and, after the December 12, 2018 incident, was not concerned
that Steven would carry out his threats or believe that Steven
was a dangerous person. Asrat denied telling Smiley “that [he]
would make any reports to anyone regarding [Steven] . . . [nor]
assure . . . Smiley that he would have no issues with [Steven].”
7
2. Smiley’s Opposition
In his opposition, Smiley contended that Asrat owed him “a
duty of protection” because Asrat had been notified about
Steven’s conduct and threats against the electrical subcontractor
and Smiley, and “Asrat failed to protect [Smiley] despite Asrat
promising him that he would take action in protection of [Smiley]
by reporting the attack and death threats to” the HOA.
(Capitalization omitted.) Smiley contended that he relied to his
detriment on Asrat’s promise.
Relying on a line of cases holding that property owners
must take minimally burdensome steps to protect persons on the
property against third party criminal acts, Smiley also contended
that Asrat owed him a duty because he was a business invitee, it
was foreseeable that Steven would attack him, and it would have
required Asrat “minimal effort” to “follow[] through with his
promise.” Smiley further contended that Asrat could be held
liable even though the shooting occurred on the public sidewalk
because Asrat exercised control over the sidewalk by initiating a
discussion with Smiley there and because the dangerous
condition was Steven, not the sidewalk, and Asrat had promised
to protect Smiley by notifying the HOA about Steven’s attack.
Smiley relied on his deposition testimony that Steven had
threatened his electrical subcontractor in July of 2018, and he
had reported the incident to Asrat. In a declaration, Smiley
averred that when he reported the July 2018 incident to Asrat he
“was advised to continue working and that [Asrat] would deal
with it.” Smiley also relied on his deposition testimony that he
was on the phone with Asrat during the December 12, 2018
altercation with Steven, and Asrat heard the events; Smiley
could hear Asrat asking what was going on; after Steven left,
8
Smiley told Asrat about the incident. Later that day, during
several phone conversations, Smiley told Asrat he wanted to quit
the project. Asrat wanted Smiley to finish the job and “didn’t
want to hear anything about the fight.” Smiley told Asrat “[they
were] going to have to do something about [Steven].” Asrat “said
he was going to talk to the HOA about what happened. And he
promised [Smiley] that he would talk to [Shawnda]. He promised
[Smiley] that everything was going to be fine.” Smiley also
averred in his declaration that during the phone conversations
Asrat “swore to [Smiley] that he would take care of the issues
with Steven . . . by reporting . . . him to the [HOA] and that
[Smiley] should not worry about [Steven] any further.”
Smiley also submitted a declaration from his son, who
worked with Smiley on Asrat’s project. Smiley’s son averred that
he heard Steven threaten Smiley’s electrical subcontractor in
July of 2018, and that on December 12, 2018, Steven walked into
Asrat’s unit and announced he would kill Smiley if he saw him
again.
3. Asrat’s Reply
In his reply, Asrat reiterated his arguments that he owed
Smiley no legal duty because the shooting occurred on public
property which Asrat did not control and the shooting was not
foreseeable. Asrat also contended that he could not be liable for
failing to report Steven’s threats to the HOA because it was
already aware of the risk posed by Steven. Smiley also testified
that he spoke with Shawnda (the HOA president) regarding
Steven’s threats.
9
4. Smiley’s Objection to Asrat’s Reply
Smiley filed an objection to Asrat’s reply, asserting it
submitted new evidence and made new arguments for the first
time.
5. The Trial Court’s Ruling
The trial court granted Asrat’s summary judgment motion
on April 20, 2023. The court concluded that Asrat owed no duty
to Smiley because he could not exert any control over Steven and
did not increase the risk posed by Steven, and because the
shooting occurred on property Asrat did not own or control.
Addressing Smiley’s claim that Asrat promised to report Steven
to the HOA, the court found that Asrat’s failure to report was not
the proximate cause of Smiley’s injury because it was undisputed
that the HOA was already aware of Steven’s violent conduct
towards Smiley and his threats to other residents and invitees
and took no action.
The court entered judgment in favor of Asrat on May 5,
2023. Smiley timely appealed.
G. The HOA’s and IRI’s Motion for Summary Judgment
or, in the Alternative, Summary Adjudication
1. The Motion
The HOA and IRI also moved for summary judgment or, in
the alternative, summary adjudication. As relevant here, they
contended they had no duty to protect Smiley because the
shooting occurred on public property they did not own or control,
the shooting was unforeseeable, and their alleged acts and
omissions were not a substantial factor in causing the shooting.
They adduced evidence that the shooting took place on the
sidewalk over which they had no control. They contended the
10
evidence showed that Smiley and Steven had “numerous”
interactions from July 2018 through January 2019 “with no
incident” and that Smiley himself was not concerned about
Steven after the December 2018 incident. Lastly, they contended
“there [were] no protective measures that could have been
implemented to intercept the sudden and unexpected attack
perpetrated by [Steven]” and Steven’s criminal conduct was an
intervening and superseding cause of Smiley’s injuries.
2. Smiley’s Opposition
In his opposition, Smiley contended that the HOA owed
him a duty of care because it was aware that Steven was
dangerous. He adduced evidence that Steven was a former
member of a criminal gang, had multiple prior felony convictions,
and possessed a gun. He argued that the HOA was aware of
these facts, as well as Steven’s threats to Smiley, through
Shawnda, president of the HOA. He adduced evidence that in
August of 2018, HOA board members Martin Johnson and Genet
Robertson witnessed Shawnda physically restrain Steven while
he shouted obscenities and threats at Smiley and that he told
Johnson about Steven threatening the electrical subcontractor.
He also adduced evidence that Steven told Shawnda about the
December 12, 2018 altercation, including that he had “a
confrontation” with Smiley which “got physical.” Smiley
contended that, based on what it knew about Steven, the HOA
should have “impose[d] fines [and] penalties” to deter Steven’s
violent conduct or sought a court order against Steven.
In addition, Smiley adduced evidence that he told Shawnda
about Steven’s threat to Smiley’s electrical subcontractor and
Shawnda responded, “ ‘you worry about your guy and I’ll worry
about my guy, I’ll take care of them.’ ” He contended this
11
constituted a promise by Shawnda (as president of the HOA) to
“take the necessary action to address the threat with [Steven]”
and that he relied on that promise.
3. Reply Brief
In their reply, the HOA and IRI argued Smiley failed to
present any authority to show they had “[a] legal obligation to
police the sidewalk owned by [the c]ity.” The HOA and IRI
further contended that Smiley had failed to adduce evidence of
causation because his theory that the HOA could have deterred
Steven by fining him was speculative.
4. The Trial Court’s Ruling
The trial court granted summary judgment to the HOA and
IRI on April 18, 2024. It concluded both defendants did not owe
Smiley a duty of care because it was undisputed that they did not
own, possess, or control the property where Steven shot Smiley.
The trial court entered judgment for the HOA and IRI on
September 20, 2024. Smiley timely appealed.
H. Shawnda’s Motion for Summary Judgment
1. Shawnda’s Motion
Shawnda separately filed a motion for summary judgment.
Shawnda contended that she had no duty to protect Smiley from
the shooting which occurred on the public sidewalk, and adduced
evidence she did not control the sidewalk.
In addition, Shawnda contended she had no duty to control
Steven and that even if she was aware of the December 12, 2018
incident, it “was not enough to make it foreseeable that Steven
would ultimately shoot [Smiley].” She relied on evidence that
Smiley and Steven had many interactions without incident, and
12
that Smiley was not concerned about Steven after the December
2018 incident.
2. Smiley’s Opposition
As relevant here, in his opposition to Shawnda’s motion
Smiley adduced evidence that he was concerned about Steven
after the December 12, 2018 incident but decided to keep working
based on Asrat’s promise he would report the incident to the
HOA. Smiley adduced evidence showing Shawnda was aware of
the risk posed by Steven, including evidence that Steven told
Shawnda about the December 12, 2018 incident, that in around
August of 2018 Shawnda had witnessed Steven “screaming
obscenities and threats at [Smiley]” and physically restrained
Steven, and that Shawnda knew Steven was a former criminal
gang member who had a felony record and kept a gun in their
unit. In addition, Smiley adduced evidence that Shawnda said to
him after Steven had threatened the electrical subcontractor,
“ ‘you worry about your guy and I’ll worry about my guy, I’ll take
care of them.’ ” He argued that this constituted a promise by
Shawnda to “handle” the issue with Steven.
3. Shawnda’s Reply
In her reply, Shawnda contended that Smiley had failed to
raise a triable issue that she had control over the location where
the shooting occurred. She also contended the evidence did not
show it was foreseeable that Steven would escalate to shooting
Smiley. Shawnda further contended that she did not owe a duty
of care to Smiley based on any type of special relationship.
4. The Trial Court’s Ruling
The trial court granted Shawnda’s summary judgment
motion, concluding the undisputed material facts established that
13
Steven shot Smiley on the public sidewalk, which Shawnda did
not own, possess, or control.
The trial court entered judgment for Shawnda on July 12,
2024. Smiley timely appealed.
DISCUSSION
A. Standard of Review
“ ‘Because this case comes before us after the trial court
granted a motion for summary judgment, we take the facts from
the record that was before the trial court when it ruled on that
motion. [Citation.] “ ‘We review the trial court’s decision de
novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.’ ” [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.’ ” (Lonicki
v. Sutter Health Central (2008) 43 Cal.4th 201, 206.)
A defendant who moves for summary judgment “bears the
burden of persuasion that ‘one or more elements of’ the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a
complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850; see Code Civ. Proc.,3 § 437c, subd.
(p)(2).) Such a defendant also “bears the initial burden of
production to make a prima facie showing that no triable issue of
material fact exists. Once the initial burden of production is met,
the burden shifts to the [plaintiff] to demonstrate the existence of
a triable issue of material fact.” (Laabs v. City of Victorville
3 Unspecified statutory references are to the Code of Civil
Procedure.
14
(2008) 163 Cal.App.4th 1242, 1250.) A triable issue of material
fact exists “ ‘ “if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” ’ ” (Janney v. CSAA Ins. Exchange (2021) 70
Cal.App.5th 374, 389-390.)
“We . . . are not bound by the reasons in [the trial court’s]
summary judgment ruling; we review the ruling of the trial court,
not its rationale.” (Joshi v. Fitness Internat., LLC (2022) 80
Cal.App.5th 814, 824.)
B. The Trial Court Properly Concluded Asrat’s Alleged
Breach of His Promise to Inform the HOA Was Not
the Proximate Cause of Smiley’s Injury
On appeal, Smiley disclaims any argument that Asrat (or
any other respondent) had a duty to stop Steven’s crime or to
police the public sidewalk in front of the Queen Arms. He now
frames his claim against Asrat as much narrower. Smiley
asserts that, after his December 12, 2018 altercation with Steven,
Asrat promised to report Steven to the HOA and Smiley
continued working on the project in reliance on that promise, but
Asrat did not make any report nor tell Smiley that he would not
make a report. Smiley’s theory is one of detrimental reliance.
As a general matter, a person has no duty to protect others
from the conduct of third parties. (Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 234-235.) But “[a] volunteer who, having
no initial duty to do so, undertakes to come to the aid of
another—the ‘good Samaritan[]’ . . . is under a duty to exercise
due care in performance and is liable if (a) his failure to exercise
such care increases the risk of such harm, or (b) the harm is
15
suffered because of the other’s reliance upon the undertaking.”
(Williams v. State of California (1983) 34 Cal.3d 18, 23.)
In Williams, our Supreme Court cited Morgan v. County of
Yuba (1964) 230 Cal.App.2d 938 as an example of harm resulting
from detrimental reliance. (Williams v. State of California,
supra, 34 Cal.3d at p. 24.) Morgan held that the plaintiffs in that
case stated a viable claim against police officers for the death of a
woman who was killed by a man the officers released from
custody. The court held the claim was viable because there was
evidence the officers knew the killer had threatened the woman,
and they had promised to notify the woman if the man was
released but failed to do so. (Morgan, at pp. 941, 943.) The court
applied the rule that “ ‘nonfeasance may give rise to tort liability
where a person, in reasonable reliance thereon, suffers harm, as
by refraining from securing other necessary assistance.’ ” (Id. at
p. 944.)
We assume for purposes of our analysis that Smiley raised
a triable issue of fact that he detrimentally relied on a promise by
Asrat to report Steven’s conduct to the HOA,4 that Asrat failed to
make the promised report, and that Asrat did not tell Smiley he
failed to report. Even so, the undisputed evidence shows that
Asrat’s broken promise was of no causal consequence because the
HOA already knew of Steven’s conduct. As the trial court
correctly found, because the HOA “was already on notice [of
Steven’s] violent behavior and history of threats,” “Asrat’s failure
4 Given this assumption, we need not address Smiley’s
argument that the trial court erred in sustaining objections to
declarations he submitted.
16
to provide additional information is not the proximate cause of
[the HOA’s] lack of action.”
Smiley alleged in his operative complaint that, when he
was hired by Asrat, the HOA board members “were aware of
repeated domestic fights between . . . Shawnda . . . and Steven,”
which were “often violent, resulting in Inglewood Police being
called to the Queen Arms premises on multiple occasions, [and]
includ[ed] a stabbing incident between [Shawnda] and [Steven],”
and that Steven’s threatening behavior towards “other residents
and invitees at the Queen Arms premises and his criminal
propensities were the subject of Queen Arms HOA meetings.”
(Capitalization omitted.) Smiley also alleged Shawnda was
aware of the December 12, 2018 incident and Smiley himself
testified he told Martin Johnson (an HOA board member) about
Steven’s July 2018 threat to the electrical subcontractor. That
Shawnda (an HOA executive) and HOA board member Johnson
knew of the July and December 2018 incidents that pre-dated the
shooting meant the HOA also knew. Smiley does not argue to the
contrary; indeed his brief elsewhere asserts that the HOA “was
aware of [Steven]’s threats and violence directed against Smiley
and his employee” based on long established precedent that legal
entities such as the HOA are charged with the knowledge of their
authorized agents. (E.g., Moore v. Phillips (1959) 176 Cal.App.2d
702, 709; Snyder v. Security-First Nat. Bank of LA (1939) 31
Cal.App.2d 660, 664.)
Instead, Smiley makes two other categories of claimed
error. The first asserts that the trial court’s causation finding did
not address his pleaded theory that Asrat had assumed a duty to
warn the HOA about Steven but failed to follow through on his
promise. We disagree. The trial court’s causation finding
17
specifically addressed Smiley’s detrimental reliance claim.
Smiley further argues his specific theory was based on Asrat’s
failure to notify him that no report had been made, and not on
Asrat’s failure to make the report, asserting that he “did not and
could not know that nothing would be done, unless Asrat warned
Smiley that he had failed to make the promised report.” We are
not persuaded. Smiley’s theory of liability relies squarely on the
detrimental reliance rule where the “harm is suffered because of
the [plaintiff’s] reliance upon [an] undertaking.” (Williams v.
State of California, supra, 34 Cal.3d at p. 23, italics added.)
Smiley claims that Asrat undertook to make a report to the HOA,
not that he would let Smiley know if he did not make such a
report. Smiley provides no authority or reasoning to support
imposing on Asrat a further duty to inform Smiley that Asrat
would not follow through on his alleged promise.5 Asrat’s failure
to follow through on warning the HOA about Steven, regardless
of whether that failure was known to Smiley, is of no moment if
the HOA already knew what Asrat did not share with it. The
5 Smiley relies on Carpenter v. City of Los Angeles (1991)
230 Cal.App.3d 923 and Morgan v. County of Yuba, supra, 230
Cal.App.2d 938, neither of which support the specific duty he now
advances. In Carpenter, the court found police officers had a duty
to convey to a witness in a criminal trial information they
received about a threat to his life from the criminal defendant;
the police had such a duty not because of any promise they made
but instead because they “lull[ed the witness] into a false sense of
security” by “assuring [the witness] that [the criminal defendant]
posed no real danger.” (Carpenter, at p. 933.) In Morgan,
liability was premised on police officers’ failure to notify the
decedent of the assailant’s release after promising to make such a
notification. (Morgan, at pp. 941, 943.)
18
failure of the HOA to act on the information already known to it
does not fall on Asrat, who was not an HOA employee or board
member. What’s more, Smiley knew the HOA was not taking
action: he told HOA representatives about the July 2018 incident
and says he was assured by Shawnda (the HOA president) that
the HOA would take action. Then the August 2018 and
December 2018 incidents occurred. Smiley was thus indisputably
on notice before the shooting in January 2019 that the HOA was
not in fact taking action.
Smiley’s second category of claimed error is a procedural
one. Smiley claims that in various ways Asrat did not properly
present the issue of causation for decision by the trial court. But
as Smiley acknowledges, courts have inherent power to grant
summary judgment on grounds not explicitly raised by the
moving party when “the material fact is undisputed and entitles
the moving party to judgment as a matter of law.” (Juge v.
County of Sacramento (1993) 12 Cal.App.4th 59, 69.) This is
because “[t]o require the trial court to close its eyes to an
unmeritorious claim” because its fatal deficiency “was not
specifically tendered by [the moving] party would elevate form
over substance and would be inconsistent with the purpose of the
summary judgment statute.” (Ibid.) Thus, a court may rely on
such a new ground provided it gives the party opposing the
motion an opportunity to respond to the matter identified by the
court and to show a triable issue of fact if there is one. (Id. at
p. 70).
Smiley argues he was deprived of such an opportunity here.
We disagree. In advance of the hearing, the court issued a
tentative ruling setting forth its conclusion regarding causation.
At oral argument, Smiley had the opportunity to argue (and did)
19
that the court’s tentative conclusion regarding causation was
wrong.6 He did not object that he needed more time to address
this new ground or request an opportunity for further briefing.
Nor did Smiley identify any facts he could adduce that raised a
triable issue on the HOA’s knowledge of Steven’s actions up
through and including what happened on December 12, 2018.
The latter is entirely unsurprising—Smiley’s theory against the
HOA was that it had an obligation to act because it already knew
of Steven’s violent tendencies regardless of any input from Asrat.
As demonstrated by Juge, the notice and opportunity to be
heard set forth above complied with due process. In Juge, the
trial court issued a tentative ruling setting forth its intent to
grant summary judgment on a lack of causation, which was a
new ground not in the moving party’s briefing. (Juge v. County of
Sacramento, supra, 12 Cal.App.4th at p. 72.) The opposing party
was unable to identify any triable issue of fact during the hearing
and did not request a continuance to provide additional
information or case authority, and the court adopted its tentative
ruling as its order. (Id. at pp. 72-73.) The Court of Appeal held
that “[u]nder these circumstances,” which parallel what occurred
here, “the trial court was not barred from granting the summary
judgment motion on a ground of law raised by the trial court.”
(Id. at p. 73.)
6 There is no reporter’s transcript for the hearing on Asrat’s
summary judgment motion, but the record does include a settled
statement regarding the argument.
20
C. The HOA and Shawnda Were Entitled to Summary
Judgment
Smiley sought to recover against the HOA and Shawnda for
not protecting him from, or warning him about, Steven. As
noted, a person does not generally have a duty to take affirmative
action to protect others from the conduct of third parties,
although there are exceptions to this rule including the “ ‘special
relationship’ doctrine.” (Delgado v. Trax Bar & Grill, supra, 36
Cal.4th at p. 235.) Both of Smiley’s claims—for negligence and
premises liability—were premised on the theory that the HOA
and Shawnda owed him a duty to protect based on his status as
an “invitee” to their property which courts have recognized
establishes a “special relationship [between] landowner or
possessor and person coming on the land.” (Rodriguez v.
Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 712;
see Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 385
[“the possessor of land is liable to invitees for foreseeable injuries
caused by the accidental, negligent or intentionally harmful acts
of third persons”].)
The HOA and Shawnda carried their initial burden in
moving for summary judgment by adducing evidence that the
shooting occurred beyond the bounds of their property, on the
public sidewalk over which they had no control. They relied on
cases holding that a landowner does not generally owe a duty to
protect invitees against harm occurring on property that the
landowner does not own, possess, or control. (See Owens v. Kings
Supermarket, supra, 198 Cal.App.3d at p. 386 [“courts . . . have
consistently refused to recognize a duty to persons injured in
adjacent streets or parking lots over which the defendant does
not have the right of possession, management and control”];
21
Steinmetz v. Stockton City Chamber of Commerce (1985) 169
Cal.App.3d 1142, 1147 [the defendant owner of property where a
party was held “owed [no] duty of care to [an individual killed by
a third party] while [the individual] was on premises neither
owned, possessed, nor controlled by” the defendant].)7
On appeal, Smiley does not dispute that the shooting took
place on the public sidewalk, outside of the property owned and
controlled by the HOA and Shawnda. Furthermore, he now
disavows any claim that the HOA or Shawnda owed him a legal
duty premised on their status as landowners.
Instead, Smiley pivots to a theory that the HOA and
Shawnda “promised to protect Smiley from Steven . . . [and] then
decided to do nothing [without] warn[ing] Smiley of that decision”
and, “lulled by [the] assurances, [Smiley] kept working.” Thus,
Smiley states, “This appeal is predicated on the theory that [the
7 Smiley contends that the HOA’s and Shawnda’s motions
for summary judgment were deficient because they failed to set
forth evidence regarding their knowledge of Steven’s past conduct
and his interactions with Smiley, which would tend to show
Steven’s shooting of Smiley was foreseeable. (See Rio Linda
Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732,
739 [“the moving party must demonstrate a negative, i.e., that
there is no evidence to support an element of the opponent’s
case”].) This argument fails because the evidence that the
shooting occurred on property the HOA and Shawnda did not
own, possess, or control was sufficient to negate the duty element
of Smiley’s claim. In the context of landowner or possessor
liability, foreseeability of harm is relevant to determine the scope
of a property owner’s duty of care to protect invitees from being
harmed. (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at
p. 243, fn. 24.) Smiley makes no argument that foreseeability can
impose a duty of care where none exists in the first place.
22
HOA and Shawnda] had . . . duties to warn Smiley about
themselves: [t]hat they made assurances to Smiley about handling
[Steven’s] acts and threats, and that they—unknown to Smiley—
decided not to act. That is the issue on appeal.”
This theory of duty is analogous to the one Smiley advances
against Asrat. Although Smiley alleged in his operative
complaint that Asrat had promised to report Steven to the HOA,
he made no allegation about any similar statement by Shawnda.8
As a result, he did not assert in the operative complaint the
theory he relied to his detriment on a promise made by Shawnda
and therefore he cannot seek reversal of the summary judgments
in favor of the HOA and Shawnda premised on such a theory.9
“The plaintiff’s complaint frames the issues for summary
judgment.” (Hedayati v. Interinsurance Exchange of the
Automobile Club (2021) 67 Cal.App.5th 833, 845.)
Even if his complaint had presented such a theory, Smiley
fails to identify any triable issues that he detrimentally relied on
8 Smiley’s theory that the HOA made a promise to him is
presumably based on the premise that Shawnda made her
purported promise on behalf of the HOA. Smiley does not
identify any evidence that the HOA made any separate promise.
9 Although Smiley alleged in the operative complaint that
respondents, including the HOA and Shawnda, could have
protected Smiley by “warn[ing him] that no action was being
taken with regard to Steven . . . and placing [him] on notice to
cease his work at the premises until such future time as action
were [sic] taken to better protect [him]” (capitalization omitted),
nowhere does that complaint allege that Shawnda promised to
take any action to protect him or to inform him if no action was
going to be taken. Without an alleged promise, Smiley could not
allege detrimental reliance.
23
a promise by Shawnda. Smiley premises his theory on evidence
that he spoke with Shawnda in July of 2018 after Steven had
threatened the electrical subcontractor, and Shawnda said to
him, “ ‘you worry about your guy and I’ll worry about my guy, I’ll
take care of them.’ ” Although we assume that Smiley could
reasonably construe this vague statement referring to an incident
not involving him as a promise to protect him,10 he could not
have reasonably relied on the statement to continue working
after December 12, 2018, the date Steven physically attacked
him. Although the reasonableness of a plaintiff’s reliance is
generally a question of fact, “the issue ‘may be decided as a
matter of law if reasonable minds can come to only one conclusion
based on the facts.’ [Citations.] Thus, in such instances where
the absence of justifiable reliance is one of law, summary
judgment or summary adjudication is an appropriate vehicle.”
(Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178,
1194.) After what occurred on December 12, 2018, it was clear
Shawnda and the HOA either had decided not to intervene with
Steven or their efforts were ineffectual, so it could not be
reasonable for Smiley to continue to rely on the promise.
D. Smiley Has Abandoned his Claims Against IRI
Smiley makes no argument in his appellate briefs as to why
the court erred in granting summary judgment to IRI.
10 Smiley also contends that the HOA, “[b]y giving Smiley
assurances that he would be protected from [Steven], then doing
nothing,” worsened Smiley’s position because it caused “Smiley to
refrain from protecting himself by ceasing work at Asrat’s unit.”
This is simply a reframing of his claim that he detrimentally
relied on Shawnda’s purported promise that she would “ ‘take
care of’ ” Steven.
24
Accordingly, we deem his claims against IRI to have been
abandoned. (See Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852 [appellate court may “treat [an] issue as
abandoned” where a party makes a “conclusory presentation,
without pertinent argument or an attempt to apply the law to the
circumstances of this case”].)
DISPOSITION
The judgments in favor of Asrat, Shawnda, the HOA, and
IRI are affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.
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