Tilley v. Cz Master Ass'n

• Decision Date: 28 June 2005
• Docket Number: No. G033470.,G033470.
• Citation: 32 Cal.Rptr.3d 151,131 Cal.App.4th 464
• Court: California Court of Appeals Court of Appeals
• Parties: Donald TILLEY, Plaintiff and Appellant, v. CZ MASTER ASSOCIATION, Defendant and Respondent.

32 Cal.Rptr.3d 151

131 Cal.App.4th 464

Donald TILLEY, Plaintiff and Appellant, v. CZ MASTER ASSOCIATION, Defendant and Respondent.

No. G033470.

Court of Appeal, Fourth District, Division Three.

June 28, 2005.

Law Offices of Thomas A. Hawbaker and Thomas A. Hawbaker, Newport Beach, for Plaintiff and Appellant.

Berger Kahn and William S. Yee, Marina del Rey, for Defendant and Respondent.

OPINION

BEDSWORTH, Acting P.J Donald Tilley, a security guard employed by BonaFide Security Services, Inc., sued CZ Master Association, a homeowner's association which had contracted with BonaFide for security services, because of injuries he suffered from an assault while responding to a complaint about a youth party on CZ's premises. In essence, Tilley argues that CZ owed the security guards a duty to provide a safe premises for them to guard, including imposing restrictions to control youth parties, that it acted negligently by failing to do so, and that it increased the danger to the guards by requiring them to work unarmed and to respond personally to complaints about such parties.

The trial court granted summary judgment in CZ's favor, concluding that: (1) CZ had no liability for the injuries suffered by the employee of an independent contractor (BonaFide) which it hired to perform work on its premises, pursuant to Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504; and Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081; (2) CZ owed Tilley no duty to restrict access to the community's premises; and (3) Tilley had assumed the risk of the injuries he suffered. We conclude the judgment must be affirmed.

The undisputed evidence in this case demonstrates CZ neither required nor expected its unarmed security personnel to confront potentially violent persons, or otherwise to place themselves in danger, and did nothing to alter the basic scope of its security guards' "observe and report" responsibilities. It thus cannot be held liable for the consequences of Tilley's decision to take action beyond the scope of his duties. Moreover, based upon the record in this case, CZ owed its security guards no duty to restrict or curtail youth parties within its premises. But even assuming CZ had such a duty, its failure to take affirmative steps to restrict or control juvenile parties within its property, cannot be construed as having "affirmatively contributed to the employee's injuries" for purposes of the peculiar risk doctrine. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

And even assuming CZ were somehow responsible for requiring security guards such as Tilley to confront and attempt to detain violent wrongdoers, then such a task must be considered a normal part of the job for which BonaFide (and Tilley) was hired. As such, BonaFide's employees would have expressly assumed the risk of such a danger, and CZ consequently had no duty to protect them from it.

Finally we reject Tilley's contention the court abused its discretion in denying his ex-parte application for a last-minute continuance of the hearing. The application did not comply with the timing requirement of Code of Civil Procedure section 437c, subdivision (h), and the court had no obligation to grant it. Because the case had been pending for four years, and two continuances of the hearing had already been allowed, we cannot say the court's denial of an additional continuance was an abuse of its discretion. The judgment is affirmed. * * *

The assault on Tilley which is at the heart of this case, occurred in August of 1998. At that time, Tilley was a 62-year-old former law enforcement officer, employed as a security guard by BonaFide.¹ BonaFide had contracted with CZ to provide security for Coto de Caza, a private, gate-guarded community (Coto), and Tilley had been assigned to work there since at least 1996.

The circumstances surrounding Tilley's assault are undisputed. Ashley S., a 17-year-old resident of Coto, had a party. Substantially more guests attended her party than had been directly invited. The party got out of hand, and both Coto's security officers and the Orange County Sheriff's deputies were called. The party was broken up, and most of the guests dispersed. Unfortunately, they did not all stay dispersed.

One of the guests who returned was Robbie Carreno. He had earlier been assaulted by some other party-goers, and he returned to the S. residence with his brother, Nathan, intending to locate his assailants and perhaps retaliate.² Robbie and Nathan located one of the perpetrator's of Robbie's assault, and attacked him.

Meanwhile, Coto security personnel again received complaints about the goings on at the S. residence. When Tilley, along with another security officer, returned to the residence, 20 to 30 people remained in and around it.³ Nathan and Robbie Carreno, however, were already in Nathan's truck, preparing to leave. Tilley approached them, and informed Nathan he was "under arrest." Tilley then asked Nathan for his keys, and obtained them. As Tilley moved away from the truck with the keys, Nathan and Robbie came after him and assaulted him in an attempt to regain the keys. Tilley was severely injured in the assault, including a fractured skull. Deputies from the sheriff's department arrived after the assault.

Tilley obtained worker's compensation benefits from BonaFide on account of his injuries, and sued CZ, along with several other individuals and entities he alleged were responsible for the incident.⁴ He resolved his claims against all named defendants other than CZ.

According to Tilley's third amended complaint, "the primary function of BonaFide under its contract with CZ Master Association was to protect the privacy of the residents of Coto de Caza, by attempting to monitor and control traffic proceeding through the gates for Coto de Caza, [with] the goal of preventing entry by uninvited persons; [] CZ Master Association contracted with BonaFide to proved a roving patrol to monitor and report to CZ Master Association the violation of the rules and regulations issued by CZ Master Association relating to pets, parking, landscaping, signage, holiday decoration, and the like; [] Bona Fide personnel, to the extent they observed nuisances, disturbances, suspicious and/or criminal acts were to make a record and report such incidents and activities to CZ Master Association for further action, and call for local law enforcement; [] the contract between CZ Master Association and BonaFide expressly forbade BonaFide personnel from carrying firearms in the performance of their employment obligations; [] BonaFide personnel were not required nor expected to perform arrests or confront lawbreakers as part of their regular employment duties . . . CZ Master Association made clear to BonaFide and its personnel that they did not have the authority, power or right to comport themselves or otherwise act as law enforcement officials in the performance of their employment duties and/or their interaction with the community. In a word, CZ Master Association originally retained BonaFide to man the gates and provide courtesy patrols, not perform law enforcement functions."

Tilley also alleges that by the time of his injury in August of 1998, Coto already had a long-standing problem with frequent and uncontrolled youth parties, many of which erupted into violence. He specifically alleges that the S. family, which hosted the party at which he was injured, had previously held summer parties in 1996 and 1997, both of which had spiraled out of control, including numerous uninvited guests, excessive drinking, and violence. There is evidence that Ashley's father, Richard S., was arrested at the 1996 party for allowing minors to consume alcohol at his residence. Tilley himself responded to complaints about the S.'s 1997 party, and found the S.'s other daughter, Torri, involved in a physical altercation with John Jesme, a young male resident of Coto. Tilley intervened on her behalf, and was struck by Jesme. That incident was the only one involving violence against any security guard in connection with a youth party prior to the incident at issue in this case.

Tilley alleged that CZ was aware of the many problems caused by out-of-control youth parties in Coto, and had authority to impose reasonable restrictions on the number of guests allowed, and to impose greater restrictions on access to the association's property. He also alleged CZ was aware of two non-party incidents in which young males had "savagely" attacked adult males who had attempted to curtail the youths' conduct within the association property, shortly prior to the S.'s 1998 party. He alleged that CZ "unreasonably increased the risk of harm to BonaFide personnel by instructing them to respond to reports of disturbances, instead of leaving such matters for law enforcement, and without instructing, training or equipping BonaFide personnel to handle such matters."

Tilley's complaint asserted three causes of action against CZ. The first cause of action, negligence, was based upon CZ's alleged failure to take reasonable steps to deter or prevent the S.'s from hosting out-of-control youth parties, and its requirement that security personnel "respond to reports of such parties, as opposed to instructing them to leave such matters to local law enforcement, while at the same time, forbidding [them] to carry firearms to pr[o]tect themselves, and by failing and refusing to provide [security] personnel with the training and equipment necessary to engage in crowd control/dispersal and otherwise deal with violent assailants."

The second cause of action, "negligent supervision of contract" alleged that CZ retained control over the details of BonaFide's work and contract performance, and...