Filed 11/14/22 Butler v. Fernandes CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

REBECCA SUE BUTLER,

Plaintiff and Appellant,

v.

VEEDA FERNANDES et al.,

Defendants and Respondents.

 B311974

 (Los Angeles County

 Super. Ct. No. 19STCV20840)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Rafael A. Ongkeko, Judge. Reversed and 

remanded with directions. 

Campbell & Farahani, Frances M. Campbell and Nima 

Farahani for Plaintiff and Appellant.

Demler, Armstrong & Rowland, David A. Ring, Pennie P. 

Liu and David W. Jennings for Defendants and Respondents.

________________________________
2

Rebecca Sue Butler leased an apartment in a three-unit 

building in Santa Monica owned by Regina E. Fernandes as 

trustee of the Fernandes Trust, dated October 27, 2014. After 

several years Butler began having difficulties with her neighbor

Joachim (Joe) Fernandes, one of Regina’s adult children,1 which 

purportedly culminated in Joe’s attempt to hit Butler and her 

boyfriend with his car. Butler moved out. Regina died. Butler 

sued Joe, three of Regina’s other adult children (Austin, Veeda

and Shyla), as well as Doe 1 in his or her capacity as the

successor trustee of the trust, alleging causes of action for 

violation of the Ralph Civil Rights Act of 1976 (Ralph Act) (Civ. 

Code, § 51.7), sexual harassment (Civ. Code, § 51.9), violation of 

the Santa Monica Tenant Harassment Ordinance (Santa Monica 

Mun. Code, § 4.56 et seq.) and negligence. 

Butler appeals the judgment entered in favor of Austin, 

Veeda and Shyla (collectively siblings) after the trial court 

granted their motion for summary judgment. Although Butler 

failed to plead viable causes of action against the siblings for 

violating the Ralph Act, sexual harassment or violation of the 

Santa Monica ordinance, because she properly pleaded a 

negligence cause of action and there are triable issues of material 

fact as to that claim, we reverse the judgment and remand the 

cause for further proceedings.

1 We refer to the members of the Fernandes family, who 

share the same surname, by their first names for clarity. 
3

FACTUAL AND PROCEDURAL BACKGROUND

1. Butler’s Tenancy and Her Escalating Troubles with Joe

In May 2013 Butler leased a unit in an apartment building 

on Yale Street in Santa Monica that Regina owned, first 

individually and later in her capacity as the sole trustee of the 

Fernandes Trust, dated October 27, 2014.

2 Butler never met 

Regina. 

Joe lived in the adjacent unit and provided on-site 

managerial assistance at the building. Joe initially showed

Butler the apartment, instructed her to fill out a credit 

application, signed the lease in his mother’s name and provided 

her keys upon move-in. Butler contended Veeda, Austin, and 

Shyla also assisted in managing the property to varying degrees 

in Regina’s absence.

3

2 The parties disputed in the trial court when the apartment 

building became part of the Fernandes Trust estate. Butler

asserted the change in ownership occurred in October 2014 when 

Regina executed the trust instrument and listed the building in 

the schedule of trust assets. The siblings argued the transfer did 

not occur until February 2019 when Regina executed a trust 

transfer deed, which was recorded posthumously in June 2019. 

On appeal the siblings do not contend the building was not a 

trust asset as of late 2014.

3 Regina traveled abroad from March 2017 to October 2018 

and fell ill upon her return. She was in and out of hospitals and 

skilled nursing facilities from January to April 2019. According 

to Butler, Austin was responsible for marketing apartments for 

rent, offered some assistance with repairs and apologized to 

Butler on Joe’s behalf for turning off her water. Veeda 

corresponded with Butler regarding maintenance issues and 

returned her last month’s rent check. Butler spoke with Shyla 
4

Butler testified at her deposition that her relationship with 

Joe was always “kind of abnormal,” but during the first few years 

of her tenancy she did not interact with him often. However, on 

one occasion shortly after she moved in, Joe beat on Butler’s door 

and berated her for parking in his spot although the building did 

not have assigned parking.

Beginning in 2017 Joe’s conduct toward Butler became 

increasingly erratic and unpleasant. The change coincided with 

Butler’s boyfriend, Daniel Morgan, spending more time at her 

apartment. Morgan eventually moved in with Butler.

In her complaint and at her deposition Butler gave 

examples of disturbing behavior she attributed to Joe. In May 

2017, for example, handymen began showing up unannounced at 

Butler’s apartment to make repairs; one worker told Butler that 

Joe, who Butler asserted had keys to her apartment, had let him 

into her unit on previous occasions. Butler also began to notice 

her belongings had been moved around her apartment when she 

was not there. She also suspected Joe was responsible for taking 

her underwear from the building’s laundry room.

One night in October 2017 Joe started loudly throwing

away glass bottles in the trash can outside Butler’s window. 

Morgan asked Joe to be quiet, to which Joe replied, “Fuck you, 

asshole. I’m taking out garbage.” A day or so later Butler found 

laundry detergent she had left in the building’s laundry room had 

been contaminated with urine. In another instance, when 

Morgan and Butler were engaged in sexual relations, Joe went 

outside and repeatedly banged on the garbage can lid, screaming 

once when she was locked out of her apartment; Shyla did not 

have a key and could not help. 
5

that they “needed to shut the fuck up.” Other times, Morgan

heard sounds of “auto-erotic pleasure” or “violent masturbation” 

coming from Joe’s apartment.

According to Morgan, Joe would leer at Butler when she

walked by. He set up a folding chair at the base of her stairs to 

watch her and other times would open his apartment door or peer 

through the window as she passed. Morgan also testified at his 

deposition that Joe told him nobody wanted him at the building, 

he just needed to get out, and he was a freeloader.

In September 2018, while Butler was out of town, Joe 

turned off the water to her apartment when Morgan’s brother 

was in the shower. When Morgan knocked on Joe’s door, Joe

responded, “What do you want? I’ll call the cops. F you. F off.” 

Morgan asked Joe to turn the water back on, to which Joe

replied, “Okay, so long as you f off.” However, the faucet for the

bathroom sink still did not work properly following the shut-off. 

Austin apologized to Butler on Joe’s behalf for the incident. 

Butler informed Veeda of the episode; Veeda replied Morgan

should not be making noise in the apartment and nothing could 

be done because Morgan was not on the lease.

In January 2019 Butler and Morgan were walking back to 

her apartment through an alleyway when Joe accelerated his car 

toward them at a high rate of speed, causing Butler and Morgan

“to have to jump out of the way” and “hug the wall.” They “[j]ust 

barely” missed being struck by Joe’s car. After Joe sped past, he 

slammed on the brakes and emerged from his car irate,

gesticulating and screaming that Butler needed to control her 

boyfriend. Butler reported the incident to the police. Shortly 

thereafter Joe positioned the building’s garage bins to block 

Butler’s access to the exits.
6

On February 1, 2019 Joe appeared at Butler’s door, along 

with four Santa Monica police officers, to deliver a notice stating 

she was in violation of her lease and demanding Morgan vacate 

the apartment.

On February 14, 2019 Butler obtained a temporary 

restraining order against Joe. However, she was never able to 

successfully serve him.

On February 28, 2019 Butler notified Regina by certified 

mail that she was terminating her tenancy. Butler stated she 

has not been staying at the apartment since February 14 “[d]ue 

to on-going and the more recent escalation of affairs involving 

Joachim Fernandes in Unit B.” Butler also wrote, “I do not feel 

safe remaining in my apartment and I am unable to continue my 

tenancy so long as he also remains on premises.”

On March 1, 2019 Butler sent a text message to Veeda

stating she had sent her 30-day notice letter and could no longer 

communicate with Veeda “without documentation.” Butler 

advised Veeda she had a restraining order against Joe. Butler

also wrote, if Veeda did not respond in writing or by “recorded 

convo,” Butler would “assume [she was] aiding him in his 

attempts to harass[her].” Butler’s message continued, “If you 

don’t know about any of this you should speak with Joe. I don’t 

know if he has told you about what has been going on but he is 

engaging in criminal activity. I am afraid for my safety. I would 

greatly appreciate if you can help keep him away from me so I 

can leave. I just want to leave. Please understand. He is ruining 

my life.” The next day, March 2, 2019, Butler sent Veeda a text 

message stating, “I saw you – please leave me alone[.]”4 The 

4 Butler explained in her deposition that she saw Veeda 

drive by the building “a few times” around the time Butler was 
7

following evening Veeda responded with a text message that 

read, “According to the lease agreement I need to refund your last 

month’s rent of $1400. Please let me know the address or PO Box 

where you want me to send the check.”

Butler moved out of the apartment in March 2019 because 

she was “no longer able to bear the behavior of [Joe],” and feared 

“for her safety if she continued to live” in the building.

Regina passed away in April 2019.

2. Butler’s Lawsuit

On June 14, 2019 Butler filed a complaint for damages for 

violation of the Ralph Act, sexual harassment, violation of the 

Santa Monica Tenant Harassment Ordinance and negligence. 

Butler named as defendants Joe, Veeda, Austin, Shyla, Doe 1 as 

successor trustee, and nine additional Doe defendants.

Butler alleged on information and belief that Regina, until 

her death in April 2019, was the owner of the apartment building 

and the trustee of the Fernandes Trust, which held the building 

for the beneficiaries of the trust. Butler further alleged, 

“[b]ecause Plaintiff has no knowledge of the specifics of the trust, 

she sues Doe 1 in his or her capacity as the successor trustee of 

the Fernandes Trust” and, on information and belief, he or she “is 

doing business as an owner or manager of rental housing.”

Butler also alleged, again on information and belief, that Joe and 

the siblings “are beneficiaries of the Fernandes Trust . . . or 

otherwise have some ownership interest in the Building,” and 

that they “all managed the Building during the time that Rebecca 

moving out. At one point Veeda stopped and picked up a package 

on Joe’s doorstep. Butler believed Veeda was helping Joe avoid 

service of the temporary restraining order.
8

Butler lived in the Apartment.” In addition, Butler alleged “each 

of the Defendants designated as a Doe is a parent, family 

member, predecessor, successor, affiliate, limited or general 

partner, agent, servant, associate, or employee of the other 

Defendants, and each is responsible in some manner for the acts 

and events alleged herein.”

As for actionable misconduct Butler alleged Joe had 

violated the Ralph Act and Civil Code section 51.9 by

intentionally threatening violence and intimidating her because 

of her sex and by sexually harassing her through “verbal, visual 

and physical conduct of a hostile nature.” She alleged as to both 

statutory violations that all the defendants had aided or 

conspired in the denial of her rights, including the right to be free 

from any violence, or intimidation by threat of violence, against 

her because of her sex. Finally, as to both causes of action, 

Butler averred that, “[a]s a result of [Joe’s] conduct,” she had 

suffered both economic and noneconomic damages.

In her cause of action for violation of the harassment 

ordinance, Butler alleged all defendants are landlords within the 

meaning of the Santa Monica Municipal Code, and each had 

violated the ordinance by “[i]nterrupting, terminating or failing 

to provide housing services,” “[f]ailing to perform repairs and 

maintenance,” “[a]busing the right of access into the Apartment,” 

“[a]busing the tenant with words which are offensive,” 

“[i]nfluencing or attempting to influence [Butler] to vacate 

through intimidation or coercion,” “[t]hreatening [Butler] with 

physical harm” and “[i]nterfering with [Butler’s] right to quiet 

use and enjoyment for her Apartment.”
9

For her negligence cause of action Butler alleged that all 

defendants “had a duty to act as reasonable landlords and to 

protect their tenants . . . and to remove any hazards and 

reasonably inspect the Building and correct defects” and each 

“had a duty to properly train and supervise their agents and 

employees who they entrusted with managerial duties.” Butler

further alleged, “Defendants failed to properly train and 

supervise their employees/agents entrusted with managerial 

duties at the Building.”

3. The Siblings’ Motion for Summary Judgment or

Summary Adjudication

In October 2020 the siblings moved for summary judgment 

or, in the alternative, summary adjudication, contending each of 

Butler’s four causes of action failed as a matter of law. In 

support of the motion the siblings emphasized Butler’s complaint 

focused on Joe’s actions; it was undisputed they had never 

engaged in or threatened violence toward Butler and had not 

sexually harassed her; and there was no evidence they had aided 

or abetted Joe’s misconduct or conspired with him to commit it. 

Indeed, they asserted, it was undisputed that they did not learn 

of Joe’s alleged misconduct, if at all, until after it had occurred.

The siblings also argued they were not Butler’s landlord 

and had no ownership interest in the building during her tenancy 

and there was no agency or employment relationship between 

Joe, on the one hand, and the siblings, on the other, during that 

time. As such, they had no duty to control Joe or to protect 

Butler from Joe’s actions.

On February 9, 2021, the same day she filed her opposition 

to the siblings’ motion, Butler filed four separate amendments to 

her complaint, correcting the identification of Joe, Veeda, Austin 
10

and Shyla to name each of them “individually and as trustee of 

the Fernandes Trust dated October 27, 2014.” The court 

approved and signed the amendments.

In her opposition to the motion Butler admitted the siblings

had never engaged in or threatened violence toward her and

never sexually harassed her. Butler also acknowledged the 

siblings were not aware of Joe’s alleged misconduct, if at all, until 

after it had occurred. However for the first time Butler asserted 

that, “for the entire length of [Butler’s] tenancy, the four 

Fernandes siblings were either de facto or de jure trustee[s] of the 

Trust, and each is therefore liable just as if each Fernandes 

sibling owned the Property in fee simple in his or her own name.”

Butler further argued her claims under the Ralph Act and Civil 

Code section 51.9—predicated on Joe’s attempt to hit Butler and 

Morgan with his car and his “campaign of bizarre sexual 

harassment”—were not against the siblings “personally,” but “on 

the basis of vicarious liability for the actions of their agent.” As 

such, Butler contended, it was immaterial the siblings were not 

aware of or did not participate in or contribute to Joe’s wrongful 

acts. 

Butler also explained the siblings’ liability for violation of 

the Santa Monica harassment ordinance and for negligence was

based on their status as Butler’s landlords. Specifically with 

respect to negligence, Butler argued her claim was predicated on 

their responsibility for failing to properly train and supervise Joe, 

their agent, in their capacities as landlords. 

4. The Trial Court’s Ruling 

On March 1, 2021, following receipt of a reply brief and a 

hearing on the motion, the trial court issued a written ruling 

granting the motion. The court found no triable issue of material 
11

fact with respect to the siblings’ “direct liability under any cause 

of action or [for] aiding or abetting in the commission of the 

underlying misconduct. If any individual has any direct liability, 

non-moving defendant [Joe] is potentially liable in his individual 

capacity as well as a successor or interim trustee of the 

Fernandes Trust during the times when he had the purported 

authority to act in his mother’s absence, as provided in the trust 

instrument. . . . Further, [the siblings], whether in their 

individual or trustee capacities, are not vicariously liable for their 

co-trustee’s misconduct because Joe Fernandes was not their 

agent, but, at best, only a co-trustee in their mother’s absence.”

The court entered judgment in favor of the siblings. Butler

filed a timely notice of appeal.

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only 

when “all the papers submitted show that there is no triable 

issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” (Code Civ. Proc., § 437c,

subd. (c).) We review a grant of summary judgment de novo

(Samara v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the 

evidence in the light most favorable to the nonmoving party 

(Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618), decide independently whether the facts not 

subject to triable dispute warrant judgment for the moving party 

as a matter of law. (Hampton v. County of San Diego (2015) 

62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 

610, 618.) 
12

“There is a triable issue of material fact 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” at trial. 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; 

accord, Lugtu v. California Highway Patrol (2001) 26 Cal.4th 

703, 722.) 

“‘[T]he scope of the issues to be properly addressed in [a]

summary judgment motion’ is generally ‘limited to the claims

framed by the pleadings. [Citation.] A moving party seeking

summary judgment or adjudication is not required to go beyond

the allegations of the pleading, with respect to new theories that

could have been pled, but for which no motion to amend or

supplement the pleading was brought, prior to the hearing on the

dispositive motion.’” (Jacobs v. Coldwell Banker Residential

Brokerage Co. (2017) 14 Cal.App.5th 438, 444; accord,

Comunidad en Accion v. Los Angeles City Council (2013) 

219 Cal.App.4th 1116, 1125 [“‘“[a] party cannot successfully resist 

summary judgment on a theory not pleaded”’”]; Hutton v. Fidelity 

National Title Co. (2013) 213 Cal.App.4th 486, 493 [“The 

pleadings play a key role in a summary judgment motion. ‘“The 

function of the pleadings in a motion for summary judgment is to 

delimit the scope of the issues . . .”’ and to frame ‘the outer 

measure of materiality in a summary judgment proceeding”’]; see 

Conroy v. Regents of University of California (2009) 45 Cal.4th 

1244, 1250 [“[t]he materiality of a disputed fact is measured by 

the pleadings [citations], which ‘set the boundaries of the issues 

to be resolved at summary judgment’”].) 
13

2. The Trial Court Properly Granted the Siblings’ Motion 

on Butler’s Causes of Action for Violations of the Ralph

Act and Civil Code Section 51.9

The Legislature enacted the Ralph Act “‘to declare 

unlawful, and civilly actionable, any acts of violence or 

intimidation by threats of violence directed against any individual 

because of his actual or perceived membership in a minority or 

similarly protected class.”’ (D.C. v. Harvard-Westlake School

(2009) 176 Cal.App.4th 836, 858; see Gabrielle A. v. County of 

Orange (2017) 10 Cal.App.5th 1268, 1290 [“[t]he Ralph Act is an 

antidiscrimination scheme”].) A plaintiff’s “sex” and “marital 

status” are among the protected characteristics. (See Civ. Code, 

§ 51.7, subd. (b)(1), incorporating the characteristics listed or 

defined in section 51, subdivisions (b) & (e), the Unruh Civil 

Rights Act.) A plaintiff may establish a violation of the Ralph Act 

by proving the defendant directly engaged in prohibited conduct

or “the defendant aided, incited, or conspired in the denial of a 

protected right.” (Gabrielle A., at p. 1291.) 

Civil Code section 51.9 “prohibits sexual harassment in 

certain business relationships.” (Hughes v. Pair (2009) 

46 Cal.4th 1035, 1039, 1044 [the statute was enacted “to address 

‘relationships between providers of professional services and 

their clients’”].) The statute’s nonexhaustive list of covered 

service providers includes a “[l]andlord or property manager”

(Civ. Code, § 51.9, subd. (a)(1)((D)); and it creates liability for any 

of those individuals who engage in “verbal, visual, or physical 

conduct of a sexual nature or of a hostile nature based on gender, 

that were unwelcome and pervasive or severe.” (Civ. Code, 

§ 51.9, subd. (a)(2).) In other words, section 51.9 “expressly 

provides a cause of action for a tenant whose landlord sexually 
14

harasses him or her.” (Smith v. BP Lubricants USA Inc. (2021) 

64 Cal.App.5th 138, 150.) 

In her complaint Butler alleged Joe directly engaged in 

conduct proscribed by both the Ralph Act and Civil Code 

section 51.9. As to the siblings, in contrast, Butler alleged in her 

pleading only that they “aided or conspired in the denial of the 

rights provided to [Butler].” Butler, however, failed to present 

any facts to support this theory of liability, admitting that, to the 

extent the siblings ever learned about Joe’s actions toward 

Butler, it was well after the challenged conduct had taken place. 

Rather, in opposing the siblings’ motion, Butler presented a new 

theory of vicarious liability—the siblings were actual (de jure) or 

de facto trustees of the Fernandes Trust, responsible for Joe’s 

conduct as their agent. 

Butler’s effort to expand her theories of liability against the 

siblings, although understandable, was improper in the absence 

of necessary court-approved amendments to her complaint. As 

discussed, the complaint limits the issues to be addressed in a 

motion for summary judgment. “‘The burden of a defendant 

moving for summary judgment only requires that he or she 

negate plaintiff’s theories of liability as alleged in the 

complaint. . . . “‘. . . The [papers] filed in response to a 

defendant’s motion for summary judgment may not create issues 

outside the pleadings and are not a substitute for an amendment 

to the pleadings.’”’” (Millard v. Biosources, Inc. (2007) 

156 Cal.App.4th 1338, 1353; see Laabs v. City of Victorville

(2008) 163 Cal.App.4th 1242, 1258 (Laabs) [“[t]o allow a party to 

expand its pleadings by way of opposition papers creates . . . an 

unwieldly process”].)
15

To be sure, “new factual issues presented in opposition to a 

motion for summary judgment should be considered if the 

controlling pleading, construed broadly, encompasses them. In 

making this determination, courts look to whether the new 

factual issues present different theories of recovery or rest on a 

fundamentally different factual basis.” (Laabs, supra, 

163 Cal.App.4th at p. 1257.) However, “if a plaintiff wishes to 

introduce issues not encompassed in the original pleadings, the 

plaintiff must seek leave to amend the complaint at or prior to 

the hearing on the motion for summary judgment.” (Ibid.; accord,

Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [“[i]f 

the opposing party’s evidence would show some factual assertion, 

legal theory, defense or claim not yet pleaded, that party should 

seek leave to amend the pleadings before the hearing on the 

summary judgment motion”].) Butler’s new theory of vicarious 

liability falls outside the permissible scope of new factual issues.

The requirement for pleading liability under a theory of 

respondeat superior is not onerous: “It is a generally accepted 

rule . . . that ‘In order to state a cause of action against defendant 

for a wrong committed by his servant, the ultimate fact necessary 

to be alleged is that the wrongful act was in legal effect 

committed by defendant. This may be alleged either by alleging 

that defendant by his servant committed the act, or, without 

noticing the servant, by alleging that defendant committed the 

act.”’ (Golceff v. Sugarman (1950) 36 Cal.2d 152, 154; accord, 

CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1264, 

fn. 7; see also Alvarez v. Felker Mfg. Co. (1964) 230 Cal.App.2d 

987, 997 [“It is the rule in California . . . that in order to hold the 

principal liable for the acts of his agent[,] it is not necessary to 

allege that the agent was negligent. It suffices to allege that the 
16

principal was negligent”].) Yet Butler’s complaint failed to 

satisfy even that minimal requirement. She alleged actionable 

misconduct against the agent, Joe, and his aiders and 

conspirators, without the additional, essential allegation that the 

siblings, as landlords, were legally responsible for his 

malfeasance.5 Nowhere in the complaint did Butler allege Regina 

or the siblings—in their individual capacity or as successor 

trustees—were vicariously liable, or legally responsible, for Joe’s 

misconduct. Simply changing the capacity in which the siblings 

were sued by amendment to the complaint did not inject the

otherwise-absent theory of vicarious liability into her pleading. 

In sum, the unpleaded theory of vicarious liability was not 

a proper ground upon which to oppose summary judgment. 

(Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 

258 [“[defendant] was not required to refute liability on a theory 

of liability raised by [plaintiff] for the first time in his opposition 

to the motion for summary judgment, and the trial court did not 

need to address the theory in ruling on the motion”]; Laabs, 

supra, 163 Cal.App.4th at p. 1253 [in opposing a motion for 

summary judgment, ‘“the plaintiff cannot bring up new, 

unpleaded issues in his or her opposing papers”’]; see Millard v.

Biosources, Inc., supra, 156 Cal.App.4th at p. 1353 [plaintiff’s 

5 It may have been Butler’s intent to plead a theory of 

vicarious liability when she named Doe 1 as successor trustee of 

the Fernandes Trust or included the multitude of possible 

relationships for the other nine Doe defendants. But such 

generalized allegations of secondary liability are properly 

disregarded as “egregious examples of generic boilerplate.” 

(Moore v. Regents of University of California (1990) 51 Cal.3d 

120, 134, fn. 12.)
17

failure to allege theory of negligence per se in complaint 

precluded reliance thereupon to oppose summary judgment].) It 

is equally improper on appeal. (See Vulk, at p. 263 [plaintiff 

“cannot obtain reversal of the trial court’s summary judgment 

ruling” on a legal theory not alleged in the complaint].) 

Butler also argues on appeal, as she did in opposition to the 

summary judgment motion, that the siblings became trustees of 

the Fernandes Trust during Butler’s tenancy. Butler emphasizes 

the trust instrument provided, “If the office of trustee becomes 

vacant, by reason of death, incapacity, or any other reason, then

Joachim . . . , Austin . . . , Shyla . . . , and Veeda . . ., or any one or 

all of them, as cotrustees, shall be successor trustees, with full 

power to continue the trust administration.” Regina’s travels 

abroad coupled with her ailing health, Butler asserted, prevented 

Regina from fulfilling her duties as trustee and, pursuant to the 

terms of the trust instrument, Joe and the siblings became 

successor trustees—and her landlords—sometime during her 

tenancy. Alternatively, Butler contends the siblings were de 

facto trustees to the extent Regina “was able to act as trustee and 

simply did not” during the operative period, based on the varying 

degrees to which the siblings assumed managerial or 

administrative responsibilities at the property. Thus, Butler

insists, her alternate theories of actual or de facto trustees 

created at least a triable issue of fact as to whether the siblings

were Butler’s landlords during 2018 and 2019. 

Even if Butler’s allegations that Joe and the siblings were

each “an owner or manager of rental housing” and “all managed 

the Building during the time that Rebecca Butler lived in the 

Apartment” is properly construed to include her theory the 

siblings were her landlord, Butler’s complaint still lacked the 
18

necessary allegation that the building’s landlords were somehow 

responsible for Joe’s purported campaign of sexual harassment 

and threats of violence. To reiterate, that fatal deficiency cannot 

be cured by contentions of vicarious liability first included in an 

opposition to the motion for summary judgment without a 

corresponding amendment to the complaint. Without a viable 

theory of direct liability and absent well-pleaded allegations of 

vicarious liability, the trial court properly granted the siblings’ 

motion on the Ralph Act and Civil Code section 51.9 causes of 

action.

3. The Trial Court Properly Granted the Siblings’ Motion

on the Cause of Action for Violation of the Santa Monica

Harassment Ordinance

Butler alleged the siblings, as well as Joe, were landlords

as defined by Santa Monica Municipal Code section 4.56.010, 

subdivision (f), and they had violated the city’s harassment 

ordinance by, among other things, “[i]nterrupting, terminating or 

failing to provide housing services required by law” and 

“[i]nterfering with [Butler’s] right to quiet use and enjoyment of 

her Apartment.” However, to be actionable under the ordinance, 

the proscribed conduct must have been undertaken “in bad faith,” 

defined as “[a]n intent to vex, annoy, harass, provoke or injure 

another person.” (Santa Monica Mun. Code, § 4.56.010, 

subd. (a).)

Butler did not allege in her complaint, and did not offer 

evidence in response to the siblings’ motion, that Veeda, Austin 

or Shyla had mistreated Butler in bad faith in violation of the 

harassment ordinance. Butler does not contend otherwise on 

appeal. Rather, once again in opposition to the motion and on 

appeal Butler argues the siblings’ liability derives from their 

status as her landlords (de jure or de facto), answerable for Joe’s 
19

misconduct as an agent or employee. Butler’s failure to amend 

her complaint to include allegations of respondeat superior 

liability dooms this cause of action, as well. 

Tacitly conceding this omission, Butler contends granting 

the motion on the harassment ordinance cause of action was

nevertheless improper because “it was reasonably contemplated 

by the Complaint that [Butler] was proceeding against both Joe 

the manager and whoever owned the apartment building as the 

employer of Joe the manager.” In support of this argument, 

Butler points to the complaint’s identification of Doe 1 as the 

successor trustee of the Fernandes Trust and her later 

amendments to the complaint naming the siblings in their 

capacities as trustees. Changing the capacity in which the 

siblings were sued, however, without adding the requisite 

allegations of secondary liability, did not place Butler’s new 

theory of liability at issue in the summary judgment motion. (See 

Laabs, supra, 163 Cal.App.4th at p. 1258; Distefano v. Forester, 

supra, 85 Cal.App.4th at pp. 1264-1265.) 

4. The Trial Court Erred in Granting the Siblings’ Motion 

on the Negligence Cause of Action 

Unlike her unpleaded theory of vicarious liability, essential 

for the causes of action for violations of the Ralph Act, Civil Code 

section 51.9 and the Santa Monica harassment ordinance, Butler 

pleaded actionable misconduct directly attributable to the 

siblings for purposes of her negligence cause of action. Butler 

alleged in her complaint that Joe and the siblings had “a duty to 

act as reasonable landlords and to protect their tenants at the 

Building, including [Butler], from harm” and “each of them had a 

duty to properly train and supervise their agents and employees 

who they entrusted with managerial duties at the Building.” 
20

Butler further alleged, “Defendants failed to properly train and 

supervise their employees/agents entrusted with managerial 

duties at the Building” and that failure to act as reasonable 

landlords proximately caused her damages.

Butler’s failure-to-train-and-supervise allegations support 

direct liability for the building’s owner—that is, whoever was 

trustee during Butler’s tenancy. (See Delfino v. Agilent

Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [“[l]iability for 

negligent supervision and/or retention of an employee is one of 

direct liability for negligence, not vicarious liability”].) Given the 

siblings’ status (along with Joe) as successor trustees, Butler 

established triable issues of fact as to their direct liability in that

capacity. (See Prob. Code, § 18004 [“[a] claim based on . . . a tort 

committed in the course of administration of the trust may be 

asserted against the trust by proceeding against the trustee in 

the trustee’s representative capacity, whether or not the trustee 

is personally liable on the claim”]; Stoltenberg v. Newman (2009) 

179 Cal.App.4th 287, 294 [“‘[A] third person with a claim against 

the trust or the trustee may assert the claim against the trust by 

bringing an action against the trustee in the trustee’s 

representative capacity. . . .’ [¶] There is no meaningful 

distinction between the liability of the decedent trustee who 

committed a tort as trustee and the successor trustee in her 

capacity as trustee, except that the decedent trustee’s estate 

might also be liable”].)6

6 The Fernandes Trust authorized the trustee to “[m]anage, 

control, improve, and maintain all real and personal trust 

property,” and to “[e]mploy and discharge agents and employees, 

including . . . property managers.” As such, oversight of 
21

The trial court in granting the siblings’ motion focused, as 

do the siblings on appeal, on their alleged status as actual or 

de facto cotrustees during Butler’s tenancy, arguing one cotrustee 

cannot be held liable for another cotrustee’s misconduct. (See 

Prob. Code, §§ 18001 [“[a] trustee is personally liable for 

obligations arising from ownership or control of trust property 

only if the trustee is personally at fault”], 18002 [“[a] trustee is

personally liable for torts committed in the course of 

administration of the trust only if the trustee is personally at 

fault”]; Blackmon v. Hale (1970) 1 Cal.3d 548, 559 [“[a] trustee is 

not strictly liable for the wrongful acts of a cotrustee”].) 

Similarly, the siblings contend, even if there were evidence they 

(and not only Joe) acted as Regina’s agents in managing the 

apartment building, one agent cannot be held liable for another 

agent’s misconduct. 

Whatever the validity of the trial court’s and the siblings’ 

analysis of the siblings’ potential personal liability for Joe’s 

alleged misconduct as cotrustees or fellow agents, broadly 

construed Butler’s complaint also alleged Veeda, Austin and 

Shyla are liable as successor trustees (as is Joe in his capacity as 

one of the successor trustees) for their predecessor’s negligent 

supervision and training of Joe in his capacity as agent for the 

building’s owner. It is true, as the siblings observe, that Butler 

did not name Regina as a defendant and Butler’s allegation of 

negligent training and supervision do not specifically refer to 

Regina. But the complaint alleged the duty to train and 

supervise was owed by the Fernandes Trust’s trustee as 

employees managing the building fell within the trustee’s 

prescribed powers.
22

owner/landlord; Regina had died before the complaint was filed; 

Butler named Doe 1 as a successor trustee; and the pleading (as 

amended) also expressly identified the siblings as trustees. 

Liberally construing the complaint, as we must, Butler 

adequately pleaded a theory of negligent training and supervision 

of the building’s manager for which the successor trustees may be 

liable in their capacity as trustees.

The record on this liability theory is sufficient to defeat a 

motion for summary adjudication. Indeed, the siblings do not 

dispute that Joe acted as Regina’s agent with respect to the 

property, contending in their moving papers in the trial court, 

“Anything [Joe] did (e.g., signing the lease or providing notices), 

was done for disclosed principal Regina.” They simply argue if 

they were cotrustees or coagents with Joe, they had no duty—and 

no potential liability to a third party—to train or supervise him.7 

But Regina as trustee, owner of the building and Butler’s 

landlord had such a duty; and the siblings are responsible for any 

breach of that duty as the Fernandes Trust’s successor trustees. 

(See Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133,

1140 [“‘[a] principal who conducts an activity through an agent is 

subject to liability for harm to a third party caused by the agent’s 

conduct if the harm was caused by the principal’s negligence in 

selecting, training, retaining, supervising, or otherwise 

controlling the agent’”]; Evan F. v. Hughson United Methodist

7 If, as Butler contends, the siblings became trustees during 

her tenancy because Regina could not, or did not, exercise her 

authority as trustee, the siblings may also be directly liable as 

trustees (not simply as successor trustees) for the failure to train 

and supervise their agent, Joe.
23

Church (1992) 8 Cal.App.4th 828, 836 [same]; see also Rest.3d 

Agency, § 7.05.)

The siblings presented no evidence that Regina had 

fulfilled her duty of training and supervising her agent, Joe. 

Accordingly, the burden never shifted to Butler to demonstrate 

there existed a triable issue of material fact as to her negligence 

cause of action. (See Ennabe v. Manosa (2014) 58 Cal.4th 697, 

705 [“[t]he moving party bears the burden of showing the court 

that the plaintiff has not established, and cannot reasonably 

expect to establish, the elements of his or her cause of action”

(internal quotation marks omitted)]; Kahn v. East Side Union 

High School Dist. (2003) 31 Cal.4th 990, 1003 [“the defendant 

must present evidence that would preclude a reasonable trier of 

fact from finding that it was more likely than not that the 

material fact was true [citation], or the defendant must establish 

that an element of the claim cannot be established, by presenting 

evidence that the plaintiff ‘does not possess and cannot 

reasonably obtain, needed evidence’”].) The siblings’ motion 

directed to that cause of action should have been denied.

DISPOSITION

The judgment is reversed. The cause is remanded with 

directions to enter a new order granting the siblings’ motion for 

summary adjudication on the first (Ralph Act), second (Civ. Code, 

§ 51.9) and third (harassment ordinance) causes of action, 

denying the motion as to the fourth (negligence) cause of action 

and for further proceedings not inconsistent with this opinion.
24

The parties are to bear their own costs on appeal. 

PERLUSS, P.J.

We concur:

SEGAL, J. FEUER, J.