Steagall v. The Alpha Epsilon Pi Foundation CA2/3

Filed 7/22/22 Steagall v. The Alpha Epsilon Pi Foundation CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on

opinions not certified for publication or ordered published, except as specified by rule

8.1115(b). This opinion has not been certified for publication or ordered published for

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JUSTIN STEAGALL, B308076

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC655418)

v.

THE ALPHA EPSILON PI

FOUNDATION, INC., et al.,

Defendants and Respondents.

APPEAL from judgments of the Superior Court of Los

Angeles County, Elaine W. Mandel, Judge. Affirmed.

Armen M. Tashjian for Plaintiff and Appellant.

Cokinos│Young, Michael C. Osbourne and Jaskiran K.

Samra for Defendants and Respondents.

_________________________

While at a fraternity at University of California Los

Angeles (UCLA), 18-year-old Justin Steagall drank beer and was

assaulted. Steagall sued the following fraternity-related entities

for negligence and premises liability: The Alpha Epsilon Pi

Foundation, Inc.; Alpha Epsilon Pi Fraternity, Inc.; Xi Deuteron

Chapter of Alpha Epsilon Pi Fraternity; and Zeta Beta Tau – Phi

Sigma Delta Corporation of Los Angeles (collectively, the

fraternity defendants). The fraternity defendants moved for

summary judgment on the grounds that the social host immunity

in Civil Code section 1714, subdivision (c), applied to them and

that they owed no duty of care to Steagall. The trial court

granted summary judgment in their favor, and Steagall now

appeals. We affirm the judgments.

BACKGROUND

I. Steagall attends a party at the Alpha Epsilon Fraternity

On March 28, 2015,1 Steagall was 18 years old and a high

school senior. That night, he and friends were walking around

UCLA’s fraternity row, looking for a party. On hearing music

coming from the Alpha Epsilon fraternity house, Steagall and his

friends asked if they could come in, and Gideon Wolder, who was

hosting his birthday party, told them they could. Wolder was a

fraternity member and on the fraternity’s judicial board. Alcohol

was served at the party, and Steagall played beer-pong,

consuming ten cups of beer and some vodka. At some point, a

fight broke out. When Steagall stood to see what was happening,

someone sucker punched him in the head, causing him to lose

consciousness. The person continued to beat Steagall as he lay

1School was not in session, presumably because it was

Spring Break.

2

on the floor.2 The next thing Steagall recalled was waking in the

hospital.

In 2019, Steagall sued the fraternity-related defendants,

alleging, as relevant here, causes of action for negligence and

premises liability.3 He alleged that the fraternity defendants

failed to maintain the premises in a safe condition by knowingly

serving an underaged Steagall alcohol, by not having a security

guard on the premises, by not checking partygoers’ age and

identification, and by creating a nightclub-type of atmosphere.

He further alleged that the fraternity defendants owed him a

duty to prevent fraternity members from serving him alcohol and

from being assaulted.

Steagall named four entities: (1) Zeta Beta Tau – Phi

Sigma Delta Corporation of Los Angeles (the House Corporation),

(2) Xi Deuteron Chapter of Alpha Epsilon Pi Fraternity (the

UCLA Chapter), (3) Alpha Epsilon Pi Fraternity, Inc. (the

Fraternity), and (4) Alpha Epsilon Pi Foundation, Inc. (the

Foundation).

The House Corporation was a nonprofit corporation

incorporated in California. It owned the premises where Steagall

was injured, leased it to members of the UCLA Chapter, and

allowed the UCLA Chapter to use the premises as a fraternity

chapter house. The House Corporation and the UCLA Chapter

did not share officers or bank accounts, and the UCLA Chapter

2 Mikey Leiderman, who was not a member of the

fraternity, was the alleged assailant. He is not a party to this

lawsuit.

3 Steagall alleged but did not pursue a cause of action for

intentional infliction of emotional distress against the fraternity

defendants. He also alleged a cause of action for assault and

battery against his then-unknown assailant.

3

did not represent the House Corporation in dealings with third

persons. The House Corporation did not control or supervise the

UCLA Chapter’s or its undergraduate members’ day-to-day

activities and did not participate in planning Wolder’s birthday

party.

The UCLA Chapter was permitted to use the premises as a

fraternity chapter house. Members of the UCLA Chapter leased

their individual rooms from the House Corporation.

The Fraternity was a nonprofit corporation, incorporated in

New York, that operated a men’s college fraternal organization.

It provided education, resources, and training to future leaders of

the world’s Jewish communities. Currently, the Fraternity

recognizes over 170 local and prospective chapters in the United

States and other countries. A Supreme Council and Supreme

Board of Governors governed the Fraternity and conducted its

business, including granting and suspending chapter charters.

The Fraternity’s Supreme Constitution and Bylaws (the Bylaws)

governed each of its local chapters, including the UCLA Chapter,

but each chapter was self-governing and financially self-

sufficient, elected its own officers, established its own bylaws,

determined its method of operation, and governed its affairs

consistent with and subject to the Bylaws. Local chapters were

permitted to use the Fraternity’s name and insignia, and the

Fraternity provided chapters with educational and operational

resources to be used at the chapters’ discretion. The Fraternity

did not control or supervise the day-to-day activities of its

chapters but could discipline them for violating the Bylaws by

revoking or suspending the charter. The Fraternity and House

Corporation did not share officers or bank accounts, and the

Fraternity did not represent the House Corporation in dealings

4

with third persons. The Bylaws provided that no chapter or its

members had authority to act as the Fraternity’s agent unless

such representation was in writing. The Fraternity was not

involved in Wolder’s birthday party and did not own, lease or

possess the premises where the assault occurred.

The Foundation was a nonprofit organization incorporated

in New York that promoted the Fraternity’s values through

leadership development, partnerships with Jewish organizations,

and provided scholarships and support to the Fraternity.

However, the Foundation did not issue charters to individual

chapters; did not share office space, a bank account or employees,

officers or directors with the UCLA Chapter; did not manage,

supervise or oversee the day-to-day activities of the UCLA

Chapter; did not represent the UCLA Chapter or the House

Corporation in dealings with third parties; did not issue rules or

policies to the UCLA Chapter; had no disciplinary power over the

UCLA Chapter; and had never consented to the UCLA Chapter

acting on its behalf. The Foundation did not own, operate, lease,

rent, manage or possess the premises where Steagall was

assaulted. Also, the Foundation did not share officers or bank

accounts with the entity that owned the premises, the House

Corporation, and the House Corporation did not represent the

Foundation in dealings with third parties. The Foundation did

not participate in planning Wolder’s party or know it would take

place.

II. The motions for summary judgment

The four fraternity defendants filed separate motions for

summary judgment based on similar grounds. First, to the

extent the causes of action against them were based on the

provision of alcohol to Steagall, they were immune under Civil

5

Code section 1714, subdivision (c), the social host immunity.

Second, they were not liable for negligence because they did not

owe Steagall a duty of care. Third, they were not vicariously

liable for the actions of the UCLA Chapter, its members, or each

other. The Fraternity additionally argued it had no special

relationship with the UCLA Chapter.

In his oppositions, Steagall first argued that the fraternity

defendants were not immune for providing alcohol to him because

Civil Code section 1714, subdivision (d), excepts claims against

parents, guardians or adults who knowingly furnish alcoholic

beverages at their residence to an underaged person. Second,

Steagall cited principles of vicarious liability, agency, and

respondeat superior to argue that each fraternity defendant was

liable for the conduct of the House Corporation and the UCLA

Chapter. Third, Steagall argued that the fraternity defendants

were liable for the UCLA Chapter’s conduct because they ratified

its conduct after the fact. As to the House Corporation, Steagall

argued it was not an absentee landlord but ran a boarding house

that doubled as a fraternity event center.4

III. The trial court grants summary judgment.

The motions for summary judgment were originally

scheduled to be heard in December 2019. At that time, the trial

4Steagall also argued that defendants were responsible as

joint venturers but does not raise that argument on appeal. Also,

Steagall asked the trial court for judicial notice of a publication,

Alcohol-Related Student Deaths, posted on the internet by

CompelledToAct.com. The publication identified alcohol-related

deaths of college students nationwide from Spring 2004 to Spring

2016. The trial court denied the request for judicial notice, and

no party raises that issue on appeal.

6

court issued a written tentative ruling granting the motions,

stating that the fraternity defendants had met their initial

burden of showing that Steagall could not establish duty or

breach, and Steagall had not “overcome the burden shifting with

admissible evidence.” But, on Steagall’s request, the trial court

continued the hearing to allow the parties to supplementally brief

Civil Code section 1714, subdivision (d).

After receiving supplemental briefing and hearing oral

argument, the trial court granted the motions. The trial court

found that Civil Code section 1714, subdivision (d), did not apply

to entities like the fraternity defendants because the subdivision

referred to an “adult” and not to a “person” and because an entity

cannot have a residence.

The trial court also rejected the theory that the fraternity

defendants were liable via a respondeat superior theory through

nonparty Wolder, stating that the mere fact that Wolder was a

member of the UCLA Chapter did not show he had actual or

apparent authority to act on its behalf. Further, there was no

evidence Wolder was acting within the scope of his authority as a

member of the UCLA Chapter’s judicial board when he gave

alcohol to Steagall.5

DISCUSSION

I. Summary judgment standard of review

Summary judgment provides courts with a mechanism to

cut through the parties’ pleadings to determine whether, despite

5 At oral argument, the trial court noted that there was a

problem with causation because there was no link to Steagall

being served alcohol and the assault. Because defendants had

not moved on the grounds of causation, the trial court decided not

to rule on that issue.

7

their allegations, trial is necessary to resolve the dispute.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

The moving party bears the burden of persuasion that there is no

triable issue of material fact and it is entitled to judgment as a

matter of law. (Id. at p. 850.) A defendant can meet this burden

by showing that one or more elements of the cause of action

cannot be established or that there is a complete defense to it.

(Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets that

burden, the burden shifts to the plaintiff to show that a triable

issue of one or more material facts exists as to the cause of action.

(Ibid.) The plaintiff may not rely on its allegations in its

pleadings to show that such a triable issue exists but must

instead set forth specific facts showing a triable issue of material

fact. (Ibid.) A triable issue of material fact exists 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.” (Aguilar, at p. 850.)

We review an order granting summary judgment de novo,

considering all the evidence in the papers except that to which

objections have been made and sustained. (Sakai v. Massco

Investments, LLC (2018) 20 Cal.App.5th 1178, 1183.) We view

the evidence in a light favorable to the plaintiff as the losing

party, liberally construe the plaintiff’s evidentiary submission

while strictly scrutinizing the defendants’ showing, and we

resolve any evidentiary doubts or ambiguities in the plaintiff’s

favor. (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284,

287–288.)

II. The social host immunity exception

The causes of action for negligence and for premises

liability were largely based on the allegation that the fraternity

8

defendants served an underaged Steagall alcohol. The fraternity

defendants argued they were immune from liability on those

causes of action under the social host immunity in Civil Code

section 1714, subdivision (c). The trial court agreed. Steagall

now contends that the trial court erred as a matter of law

because the exception to the immunity in subdivision (d) of Civil

Code section 1714 applied to the fraternity defendants. We

disagree.

Decades ago, our Legislature changed the nature of tort

liability for those who provide alcoholic beverages in social

settings by granting such providers sweeping civil immunity.

(Allen v. Liberman (2014) 227 Cal.App.4th 46, 53 (Allen).) The

Legislature thus added section 1714, subdivision (c), to the Civil

Code, which provides that “no social host who furnishes alcoholic

beverages to any person may be held legally accountable for

damages suffered by that person, or for injury to the person or

property of, or death of, any third person, resulting from the

consumption of those beverages.” (See also Bus. & Prof. Code,

§ 25602, subd. (b) [providing immunity from civil liability for

selling, serving or furnishing alcoholic beverages to obviously

intoxicated person].) This social host immunity applies to the

failure to supervise people who drink alcohol at social events.

(Allen, at p. 54.)

There is an exception to the social host immunity. A

“parent, guardian, or another adult” who “knowingly furnishes

alcoholic beverages at his or her residence to a person whom he

or she knows, or should have known, to be under 21 years of age,”

may be held legally accountable to a person suffering damages

resulting from consuming those beverages. (Civ. Code, § 1714,

subd. (d)(1).)

9

Steagall argues that this exception applies to the fraternity

defendants. His argument hinges on the meaning of “parent,

guardian, or another adult.” (Civ. Code., § 1714, subd. (d)(1).)

According to him, corporate entities like the fraternity

defendants are “another adult.” According to the fraternity

defendants and the trial court, corporate entities are not “another

adult”; rather “another adult” must be a natural person. The

matter for us therefore is one of statutory interpretation.

In cases involving statutory interpretation, our

fundamental task is to determine the Legislature’s intent, so as

to effectuate the law’s purpose. (People v. Ruiz (2018) 4 Cal.5th

1100, 1105; 1500 Laurel Owner’s Assn., Inc. v. Appellate Division

of Superior Court (2018) 28 Cal.App.5th 1146, 1151.) We begin

by examining the statute’s words, giving them their usual and

ordinary meaning, because the words generally are the most

reliable indicator of legislative intent. (1500 Laurel, at p. 1151.)

If unambiguous, the plain meaning of the statutory language

controls, and we need go no further. (Ibid.) Ultimately, we

choose the construction comporting most closely with the

legislators’ apparent intent, with a view to promoting the

statute’s general purpose, rather than defeating it. (Ibid.)

Here, the language at issue is “parent, guardian or another

adult.” (Civ. Code., § 1714, subd. (d)(1).) “Adult” generally refers

to a natural person over a certain age, usually 18 years. (See,

e.g., Fam. Code, §§ 6500 [minor is individual under 18], 6501

[adult is individual 18 or older]; Ed. Code, § 52610 [adult for

purposes of crediting attendance from state school fund is a

person 18 years or older]; Prob. Code, § 3901, subd. (a) [adult for

purposes of Uniform Transfers to Minors Act is person 18 years

or older].) Corporate entities, however, have no age and are not

10

characterized as adults or children. Further, the word “another”

in front of adult shows that the adult must be like or similar to a

parent or guardian of a minor. Given that a natural person is a

parent or guardian of a minor, it follows that “another adult”

must also be a natural person, i.e., someone who is responsible

for a minor.

Civil Code section 1714, subdivision (d)(1), also refers to

knowingly furnishing alcoholic beverages at “his or her

residence.” (Italics added.) In this context, residence clearly

refers to a person’s home, where natural people live. Corporate

entities do not have homes or residences as such. They may own

property and have places of incorporation or reside in a state, but

that is clearly not what the statute is referring to when it uses

the term “residence” as a place where alcohol can be served. On

its face, the subdivision is therefore limited to natural persons

and excludes corporate entities.

Limiting Civil Code section 1714, subdivision (d), in this

manner makes sense in the overall context of the statute’s

general purpose. As we have said, the Legislature, via Civil Code

section 1714, subdivision (c), in 1978, limited tort liability for

social hosts who supply alcohol to a person. (Allen, supra, 227

Cal.App.4th at p. 53.) Thereafter and in response to alcohol-

related deaths of minors and others under the legal drinking age,

the Legislature, in 2010, created the exception in Civil Code

section 1714, subdivision (d). Given that children and people

under the legal drinking age were the target of the protections

afforded by that exception, it makes sense that parents and

guardians and like adults who socially host children at parties,

sleepovers, and other get togethers would be the subjects of the

11

exception. Stated otherwise, the exception is aimed at preventing

adults from giving minors alcohol at social events.

And although we have no need to turn to legislative history

where, as here, the face of the statute is unambiguous (see, e.g.,

People v. Borynack (2015) 238 Cal.App.4th 958, 962 [if statute

susceptible of more than one reasonable interpretation, we may

look to legislative history to aid interpretation]), legislative

history supports our conclusion. As the court in Allen, supra, 227

Cal.App.4th at pages 50, 55 and footnote 3, said, Civil Code

section 1714, subdivision (d), was enacted partly in response to

the tragic death of 16-year-old Shelby Allen after she drank 16

shots of vodka in one hour during a sleepover at a friend’s house.

“According to an Assembly bill analysis of Assembly Bill No. 2486

(2009–2010 Reg. Sess.) as amended on June 29, 2010, it appears

the statute was amended as the result of Shelby’s death. The bill

analysis provides: ‘In support of the narrow approach taken in

the bill, the author underscores the measure is not about

somehow imposing “automatic liability” on any adult who may

have inadvertently provided access to alcohol by a minor. The bill

simply removes the absolute bar to any potential liability in any

situations for adult social hosts who knowingly provide alcohol to

minors. Under the bill, the families of a minor injured or killed

by alcohol will still need to prove in court all the elements of

negligence—that an adult social host, as narrowly defined below,

breached his or her responsibility to uphold the law, knowingly

provided alcohol to the child, and injuries or death thereby

resulted from this action. [¶] . . .’ (Assem. Conc. Sen. Amends. to

Assem. Bill No. 2486 (2009–2010 Reg. Sess.) as amended June

29, 2010, p. 2[ ].) The bill analysis added: ‘. . . [¶] Shelby’s

tragic death is just one example of the devastating consequences

12

that can follow underage drinking. As a result, many groups . . .

recommend our legal system should discourage parents from

allowing underage drinking in the home, and they strongly

support the establishment and enforcement of targeted social

host laws like the one proffered in this measure to reduce access

to alcohol by underage youth.’ ” (Italics added.) Legislative

history therefore supports our conclusion that the exception in

subdivision (d) is targeted at natural persons, in particular,

parents, guardians and other adults who often have the care of or

host children at social events.

To support his argument to the contrary that “adult”

includes corporate entities, Steagall cites Business and

Professions Code section 5219, which provides that a “person”

includes a “natural person, firm, cooperative, partnership,

association, limited liability company, and corporation.” As is

evident, however, that section is part of the Business and

Professions Code and, specifically, the Outdoor Advertising Act

(OAA) (Bus. & Prof. Code, 5200 et seq.). For the purposes of the

OAA, a person includes corporate entities. Steagall cites no

authority—other than general principles concerning statutory

interpretation—that the specific definition of a person applicable

to the OAA has been imported into Civil Code section 1714,

subdivision (d). If that were the case, then why wouldn’t it be

imported into all of California’s codes and acts?

We therefore find that the trial court did not err as a

matter of law in finding that the exception to the social host

immunity in Civil Code section 1714, subdivision (d), for adults

who provide alcohol to a person under 21 years did not apply to

the fraternity defendants.

13

III. Negligence and premises liability causes of action and the

House Corporation and the UCLA Chapter 6

The negligence and premises liability causes of action were

based on Wolder’s provision of alcohol to the underaged Steagall,

the third party’s assault on Steagall, the failure to check guests’

identification at the party, and the failure to have a security

guard at the party. After setting forth applicable principles, we

explain why the trial court properly found that no triable issue of

material fact existed as to the House Corporation and the UCLA

Chapter.

A. General principles of negligence and premises liability

A plaintiff suing for negligence must prove duty, breach of

duty, causation, and damages. (Barenborg v. Sigma Alpha

Epsilon Fraternity (2019) 33 Cal.App.5th 70 (Barenborg).)

Although the general rule is that everyone has a duty to act with

reasonable care under the circumstances (Regents of University of

California v. Superior Court (2018) 4 Cal.5th 607, 619), there is

no general duty to act to protect others from a third party’s

conduct (Barenborg, at p. 76). An exception exists where the

defendant had a special relationship with the plaintiff or the

6Although Steagall alleged the causes of action against all

fraternity defendants, he states in his reply brief on appeal that

the premises liability cause of action applies only to the House

Corporation “directly and to the others vicariously.” Elsewhere

in his briefs, he appears to raise liability for direct negligence and

premises liability as to the House Corporation and the UCLA

Chapter. We therefore address direct liability on these causes of

action as to the House Corporation and the UCLA Chapter only.

14

third party.7 (Ibid.) “ ‘The relationship between a possessor of

land and an invitee is a special relationship giving rise to a duty

of care.’ ” (Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 107

(Hanouchian).)

Landowners generally owe a duty to maintain their

property in a reasonably safe condition, and an exception to this

general rule will be made when a public policy clearly supports it.

(Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,

674, disapproved on another ground by Reid v. Google, Inc. (2010)

50 Cal.4th 512, 527, fn. 5.) Public policy generally precludes

landlord liability for a dangerous condition coming into existence

after possession of the premises has passed to a tenant in the

absence of the landlord’s actual knowledge of the dangerous

condition. (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604.)

Otherwise, Rowland v. Christian (1968) 69 Cal.2d 108, 112 to 113

(Rowland), sets forth the factors to balance when determining

whether an exception to the general rule of liability should be

made: “foreseeability of harm to the plaintiff, the degree of

certainty that the plaintiff suffered injury, the closeness of the

connection between the defendant’s conduct and the injury

suffered, the moral blame attached to the defendant’s conduct,

the policy of preventing future harm, the extent of the burden to

the defendant and consequences to the community of imposing a

duty to exercise care with resulting liability for breach, and the

availability, cost, and prevalence of insurance for the risk

involved.” (See also Hanouchian, supra, 51 Cal.App.5th at

p. 107.) The two most important considerations are foreseeability

7 Another exception is where the defendant voluntarily

undertook to act to protect another (the negligent undertaking

doctrine). (Barenborg, supra, 33 Cal.App.5th 76.)

15

and the extent of the burden on the defendant, and in cases

where the burden of preventing future harm is great, a high

degree of foreseeability may be required. (Id. at p. 108.)

To determine duty, a court should first identify what

specific measures the plaintiff claims the defendant should have

taken to prevent the harm. (Hanouchian, supra, 51 Cal.App.5th

at p. 108.) Second, how financially and socially burdensome

would those measures be on a landlord or possessor of property?

(Ibid.) And third, what was the third party conduct that the

plaintiff claims the proposed measures could have prevented and

how foreseeable was this conduct? (Ibid.)

Hanouchian analyzed these three factors in a context

similar to the one we face here. In that case, sorority members at

a California university hosted an open party (a party with

unrestricted access by nonmembers without invitation where

alcohol is present) at their off-campus residence. (Hanouchian,

supra, 51 Cal.App.5th at p. 104.) Two men attacked the plaintiff

at the party. The plaintiff sued the sorority members for

negligence based on their failure to follow the university’s and

the fraternal organizations’ risk management protocols. (Id. at

p. 103.) Those protocols required sororities to limit the type and

amount of alcohol served, to provide security, to have an

approved guest list, and to comply with risk management

policies, which precluded open parties. (Id. at pp. 103–104, 109.)

Further, the protocols were developed in response to prior

incidents involving violence and unlimited alcohol. The plaintiff

in Hanouchian, at page 109, claimed that the sorority members

should have had a security guard, vetted attendees, and abided

by the risk management policies. The trial court rejected those

16

claims and sustained the sorority members’ demurrers without

leave to amend.

On review, the Court of Appeal noted that a property owner

may have a duty of care to take reasonable steps to protect

persons on its property from physical harm caused by a third

party’s foreseeable criminal act. (Hanouchian, supra, 51

Cal.App.5th at p. 107.) That being said, providing security

guards and vetting attendees are “highly burdensome measures

that require a heightened degree of foreseeability.” (Id. at p. 109;

accord, Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 244–

246 [bar owner had no duty to provide security guard to prevent

assaults, despite evidence of a few prior altercations between

patrons]; Ann M. v. Pacific Plaza Shopping Center, supra, 6

Cal.4th at p. 679 [hiring security guard rarely will be merely a

minimal burden]; Melton v. Boustred (2010) 183 Cal.App.4th 521,

540–541 [heightened degree of foreseeability of assault must be

shown before homeowner who had open party can be required to

limit or vet guest list].) The burden of hiring security guards is

so extreme that the requisite degree of foreseeability to trigger

that burden will rarely, if ever, be established in the absence of

evidence of prior similar incidents. (Melton, at p. 539.)

Thus, in Hanouchian, allegations of past violence were

insufficient to establish that the assault was highly foreseeable or

to evidence actual knowledge sufficient to give rise to a duty to

prevent third party criminal conduct. (Hanouchian, supra,

51 Cal.App.5th at pp. 111–113.) Rather, a defendant has no duty

to take steps to prevent or respond to third party crime based on

constructive knowledge or information that the defendant should

have known. (Id. at p. 112.) Knowledge of prior incidents at

fraternity parties establishes only “ ‘general knowledge of the

17

possibility of violent criminal conduct’ ” and does not suffice to

make it highly foreseeable a criminal assault would occur at a

specific party. (Id. at p. 113.) Accordingly, the Court of Appeal

affirmed the judgment in the sorority members’ favor.

B. Steagall failed to raise a triable issue of material fact.

Here, the House Corporation owned the premises, which it

leased to individual members of the UCLA Chapter. The UCLA

Chapter was further permitted to use the premises as a

fraternity chapter house. As such, Steagall alleged that these

defendants had a duty to provide a security guard at Wolder’s

party, to prevent underage drinking, and to vet guests. However,

such measures are highly burdensome and will not be imposed on

a landowner or possessor of property in the absence of a high

degree of foreseeability. (See, e.g., Hanouchian, supra, 51

Cal.App.5th at p. 108.)

Steagall, however, failed to present any evidence that his

assault was highly foreseeable to the House Corporation and the

UCLA Chapter. He instead relied on general allegations in his

complaint, the Bylaws and risk management policies, and

common sense. A plaintiff may not, however, rely on his

complaint’s allegations but instead must show specific facts to

defeat summary judgment. (Code Civ. Proc., § 437c, subd. (c).)

And while the Bylaws and risk management policy address open

parties and alcohol use, they are nonetheless insufficient to show

there existed a high degree of foreseeability that a criminal

assault would occur at Wolder’s birthday party and thus to raise

a triable issue of fact as to the issue of duty by the House

Corporation. (See Hanouchian, supra, 51 Cal.App.5th at

pp. 110–111 [fraternal organizations’ guidelines and protocols did

18

not impose greater legal duty on sorority members than statutory

or common law otherwise allowed].)

Finally, Steagall dismisses his obligation to produce

evidence to create a triable issue of material fact that there was a

high degree of foreseeability a criminal assault would occur at the

premises by implying it is a matter of common sense. Steagall

did not produce evidence of any past incidents of violence at the

UCLA Chapter or of its and the House Corporation’s actual

knowledge of any such incidents. And while he does state that

Wolder was a member of the UCLA Chapter’s judicial board,

which adjudicated issues such as fights between members and

breaches of conduct, it is unclear what the link is between

Wolder’s status and foreseeability. There is no evidence, for

example, about what Wolder might have learned as a member of

the judicial board that might establish such a link.

Instead, Steagall offhandedly asserts that it doesn’t “take a

rocket scientist to figure out that uncontrolled consumption of

alcohol and drugs, in a party where a bunch of young men and

women are drinking, getting high and partying, bad things such

as violent attacks, fights, rapes, etc., are foreseeable.” We agree:

this was not a matter of rocket science; it was a matter of

evidence. While we are not cavalier about the sentiment

underlying Steagall’s remark—that drinking and criminal

behavior can occur at fraternity parties—there is no recognized

special relationship between fraternity members who have been

told not to engage in certain behaviors and partygoers that would

permit imposing a greater or more burdensome duty on fraternity

members solely because of their membership and training.

(Hanouchian, supra, 51 Cal.App.5th at p. 110.) Stated otherwise,

what may be common sense is insufficient to establish the duty

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Steagall seeks here to impose. (See Melton v. Boustred, supra,

183 Cal.App.4th at p. 538 [foreseeability of criminal assault

cannot be established by common sense notion that open

invitation to party would result in injury].)

In the absence of evidence relevant to establish the high

degree of foreseeability needed to impose a duty, summary

judgment was properly granted.

IV. Vicarious liability

Steagall posits an alternative theory why the fraternity

defendants should be liable for negligence and premises liability:

Wolder was their agent and, as such, vicariously liable through

him.

A. General principles

An agency is created when an agent represents another,

called the principal, in dealings with third persons. (Civ. Code,

§ 2295.) “A corporation may be held vicariously liable as a

principal for the torts of its agents.” (Secci v. United Independent

Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 855.) Agency can

arise by virtue of an express agreement, such as where the agent

is employed by the principal, or from the manifestation of consent

by one person to another that the other shall act on the person’s

behalf and subject to the person’s control, and consent by the

other so to act. (Ibid.; van’t Rood v. County of Santa Clara (2003)

113 Cal.App.4th 549, 571.) The principal must in some way

indicate the agent is to act for the principal, and the agent must

act or agree to act on the principal’s behalf, subject to the

principal’s control. (Secci, at p. 855.) The essential characteristic

of agency is control. (Ibid.) Although agency is generally a

question of fact, where the facts are undisputed, the existence of

20

an agency may be determined as a matter of law. (Emery v. Visa

Internat. Service Ass’n (2002) 95 Cal.App.4th 952, 960.)

Barenborg, supra, 33 Cal.App.5th 70, involved similar facts

and issues concerning the direct and vicarious liability of a

national fraternity.8 The plaintiff in that case was injured when,

while intoxicated, she fell off a dancing platform at a party hosted

by the California Gamma fraternity (Cal. Gamma), a local

chapter of the national fraternity. (Id. at pp. 73–74.) She sued

the national fraternity for negligence. The national fraternity

had bylaws that were binding on local chapters, including Cal.

Gamma. Under the bylaws, the national fraternity granted

charters to local chapters, allowed them to use the national

fraternity’s insignia and name, and provided resources to local

chapters. (Id. at pp. 73–74.) The bylaws also required local

chapters to pay dues, submit reports, and allow inspections. But

the bylaws also said that local chapters were “ ‘virtually

independent,’ ” had complete control of their own activities, and

had no authority to act for or to bind the national fraternity.

(Id. at p. 74.) Still, the national fraternity had authority to

discipline individual members and local chapters and to suspend

or revoke a charter. The national fraternity’s risk-management

policy, which was also binding on local chapters and individual

members, prohibited open parties and serving alcohol to

underage and obviously intoxicated individuals.

The trial court granted summary judgment in the national

fraternity’s favor, finding it owed no duty of care to the plaintiff

and was not vicariously liable for Cal. Gamma’s actions. In

affirming that ruling, the Court of Appeal surveyed authority

8Although cited by the fraternity defendants in the trial

court and on appeal, Steagall ignores Barenborg.

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from other jurisdictions relevant to the existence of a special

relationship between a national fraternity and its local chapters.

(Barenborg, supra, 33 Cal.App.5th at pp. 78–79.) That survey

showed two themes running through the case law. First, “the

existence of general policies governing the operation of local

chapters and the authority to discipline them for violations does

not justify imposition of a duty on national fraternities.” (Id. at

p. 79.) Second, because national fraternities cannot monitor the

day-to-day activities of local chapters contemporaneously, courts

have concluded that absent an ability to do so, there can be no

duty to control. (Ibid.) Barenborg thus observed, “Absent an

ability to monitor the day-to-day operations of local chapters, the

authority to discipline generally will not afford a national

fraternity sufficient ability to prevent the harm and thus will not

place it in a unique position to protect against the risk of harm.”

(Id. at p. 80.)

Barenborg applied these principles to the plaintiff’s theory

that Cal. Gamma was the national fraternity’s agent and, as

such, vicariously liable. The Court of Appeal found that the

record permitted no reasonable inference that the national

fraternity had a sufficient right to control Cal. Gamma’s day-to-

day activities. (Barenborg, supra, 33 Cal.App.5th at p. 85.) The

court cited the national fraternity’s bylaws providing that the

national fraternity had no power to control local chapters’

activities or operations, that local chapters were virtually

independent of the national fraternity and had complete control

of their activities subject to certain duties, and that local chapters

had to make their own arrangements as to living quarters.

(Ibid.) Barenborg, at page 86, also disagreed that the national

fraternity’s rules, risk management policies, and disciplinary

22

powers were sufficient to establish agency: the existence of such

standards regulating aspects of local chapters’ activities,

including disciplinary powers, “did not amount to a right to

control” the local chapter’s “day-to-day operations or the physical

details of a party.”

B. Forfeiture

Based on cursory cites to agency law, Steagall’s argument

appears to be that all fraternity defendants were Wolder’s

principal and he, their agent. As an initial matter, this argument

is problematic because Steagall does not distinguish between the

four fraternity defendants vis à vis any relationship with Wolder

or each other. He presents no evidence or argument that any

specific fraternity defendant, for example, had any

communication with Wolder, participated in Wolder’s birthday

party, or knew about the party. In short, Steagall has not

delineated how each individual fraternity defendant controlled

Wolder or the UCLA Chapter such that an agency relationship

was created.

This failure to support contentions with reasoned argument

and citations to authority and to the record renders the

contention forfeited. (See generally Nwosu v. Uba (2004) 122

Cal.App.4th 1229, 1246; Badie v. Bank of America (1998) 67

Cal.App.4th 779, 784–785; Landry v. Berryessa Union School

Dist. (1995) 39 Cal.App.4th 691, 699–700 [points perfunctorily

raised on appeal without adequate analysis and authority may be

treated as abandoned]; Cal. Rules of Court, rule 8.204(a)(1)(B).)

Where, as here, a party fails to make a reasoned argument,

stating instead bare conclusions without supporting them in the

context of the record and authority, we do not make arguments

for parties.

23

In addition, Steagall argued in his reply brief on appeal

that the fraternity defendants were alter egos of each other.

However, we generally do not consider a contention raised for the

first time in a reply, partly because the respondent had no

opportunity to address it. (Reichardt v. Hoffman (1997) 52

Cal.App.4th 754, 764.) Moreover, Steagall cited no evidence to

show the unity of interest between the fraternity defendants that

alter ego requires. (See generally Sonora Diamond Corp. v.

Superior Court (2000) 83 Cal.App.4th 523, 538 [alter ego requires

unity of interest and ownership between corporation and its

equitable owner such that separate personalities don’t exist].)

We decline to address any alter ego theory.

Notwithstanding forfeiture, we address vicarious liability

on the merits.

C. The Fraternity

Relying on Barenborg, the Fraternity here argued that it

satisfied its burden of establishing there was no triable issue of

material fact that the UCLA Chapter and its individual members

were not the Fraternity’s agents. The Fraternity thus points out

that its Bylaws and risk management policy contained similar

provisions to the bylaws and policies in Barenborg. The Bylaws,

for example, empowered the Fraternity to revoke or suspend

charters and to expel fraternity brothers and addressed alcohol

use by prohibiting open parties, serving alcohol to minors, and

playing drinking games. And although the Bylaws did not

expressly provide that local chapters control their own activities

and had no authority to act for or to bind the Fraternity, its chief

executive officer declared that local chapters govern their own

affairs, the Fraternity did not control or supervise the UCLA

Chapter’s day-to-day activities, and local chapters and their

24

members had no authority to act as the Fraternity’s agent unless

the representation was in writing signed by the Fraternity. This

was sufficient to shift the burden to Steagall.

In response, Steagall merely cited back to the Bylaws and

risk management policy. He otherwise produced no evidence that

the Fraternity controlled the UCLA Chapter or Wolder. In the

absence of such evidence, the Bylaws and risk management

policies were insufficient to raise a triable issue of material fact

that Wolder or the UCLA Chapter were agents of the Fraternity.

(See generally Barenborg, supra, 33 Cal.App.5th at p. 85.)

D. The Foundation

This conclusion applies with perhaps greater force to the

Foundation, whose relationship to local chapters like the UCLA

Chapter is more attenuated. The Foundation’s main purpose was

to promote the Fraternity’s values through leadership

development, partnerships with Jewish organizations, and

providing support. As such, the Foundation did not issue

charters or rules and policies applicable to the UCLA Chapter;

had no daily communications with the UCLA Chapter; had no

power to discipline the UCLA Chapter and its members; did not

manage, supervise or oversee the UCLA Chapter’s and its

members’ day-to-day activities; and no local chapter or its

members had authority to act as the Foundation’s agent. By

failing to respond to this evidence, Steagall failed to raise a

triable issue of material fact as to the Foundation’s vicarious

liability for Wolder’s conduct.

E. The House Corporation

We have already discussed above why there was an

insufficient showing that the House Corporation was directly

25

liable for negligence and premises liability. As for its alleged

vicarious liability, the House Corporation’s President declared

that while it owned the premises where Steagall was injured, it

leased rooms to members of the UCLA Chapter and allowed the

UCLA Chapter to use the premises as a fraternity chapter house.

The House Corporation did not control or supervise the UCLA

Chapter’s and its members’ day-to-day activities and, specifically,

did not participate in planning Wolder’s birthday party. This

evidence was sufficient to shift the burden of producing evidence

to Steagall.

He, however, did not introduce any evidence to create a

triable issue of material fact. There was no evidence, for

example, that people had been injured at parties at the UCLA

Chapter in the past, that the UCLA Chapter or any of its

members had been disciplined in the past, or that the House

Corporation knew about any prior incidents or discipline. In the

absence of such evidence, a triable issue of material fact could not

be created that the House Corporation, as landlord, was

vicariously liable for Wolder’s conduct. (See, e.g., Melton v.

Boustred, supra, 183 Cal.App.4th at pp. 537–538 [requisite high

degree of foreseeability will rarely be proven in absence of prior

similar incidents in cases involving liability for third party’s

criminal conduct].)

F. The UCLA Chapter

The House Corporation leased individual rooms at the

premises to members of the UCLA Chapter, and the UCLA

Chapter was allowed to use the premises as a fraternity chapter

house. As such, Steagall broadly contends that Wolder was the

UCLA Chapter’s agent.

26

A principal who personally engages in no misconduct may

be vicariously liable for a tortious act committed by an agent

within the course and scope of the agency. (Downey Venture v.

LMI Ins. Co. (1998) 66 Cal.App.4th 478, 513.) The existence and

scope of an agency are generally questions of fact. (Arocho v.

California Fair Plan Ins. Co. (2005) 134 Cal.App.4th 461, 466;

Michaelson v. Hamada (1994) 29 Cal.App.4th 1566, 1576.)

The UCLA Chapter agrees it could be vicariously liable for

Wolder’s criminal act of giving alcohol to a minor (see, e.g., Bus.

& Prof. Code, § 25658, subd. (a)) if (1) it authorized the

commission of the tort or crime, (2) Wolder committed the tort or

crime in the scope of his employment or the agency or while

performing a service on behalf of the UCLA Chapter, or (3) the

UCLA Chapter ratified Wolder’s conduct after the fact. (See

generally Doe v. Roman Catholic Archbishop of Los Angeles

(2016) 247 Cal.App.4th 953.) It is inappropriate to impose

vicarious liability for an agent’s misconduct that does not arise

from the principal’s enterprise but instead from a personal

dispute. (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280,

291―292 [general rule is employee is not acting in scope of

employment when coming and going to work, but there is an

exception for a “special errand”].)

The UCLA Chapter asserts that any criminal act Wolder

committed was not done in the course of any agency relationship

with it. Rather, the party at which Steagall was injured was not

a fraternity event; it was Wolder’s birthday party. Wolder thus

testified at his deposition that he would not call the party “a

fraternity party. It was my birthday party, and I lived at the

house at the time.” This therefore evidenced that the birthday

party was not a UCLA Chapter-sponsored event but a private

27

party and not part of the fraternity’s “enterprise.” (See Kephart

v. Genuity, Inc., supra, 136 Cal.App.4th at p. 292.)

Steagall, however, simply calls the party a fraternity party

in his briefs but cites no law or evidence to support that

characterization or that the UCLA Chapter sponsored or was

involved in the party. Instead, he cites these facts: (1) Wolder

was an adult host of the party, (2) he resided in the fraternity

house, (3) he knew Steagall was a minor, (4) he gave Steagall

alcohol, and (5) he was a member of the fraternity’s judicial

board. Even assuming that these facts were undisputed, it is

unclear how they show that Wolder’s party occurred in the scope

of the UCLA Chapter’s enterprise. Steagall failed to produce

evidence that might have spoken to that issue; for example, what

functions did the UCLA Chapter sponsor, what policies or rules

did the UCLA Chapter issue to its members, did Wolder sign any

leasing agreement that might be relevant, and has Wolder ever

been disciplined by the UCLA Chapter?

In the absence of answers to such questions and cogent law,

argument, and evidence, Steagall failed to raise a triable issue of

material fact as to the UCLA Chapter and any of the fraternity

defendants.

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DISPOSITION

The judgments are affirmed. Respondents may recover

their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

KALRA, J.*

*Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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