Smiley v. Asrat CA2/1

Opinion

Filed 9/22/26 Smiley v. Asrat CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.