Filed 9/28/23; certiified for publication 10/24/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE IRVINE COMPANY LLC,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

CHRISTINA DEMIRELLI,

 Real Party in Interest.

 G061791

 (Super. Ct. No. 30-2020-01137834)

 O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Donald F. Gaffney, Judge. Petition granted.

Schumann Rosenberg & Arevalo, Kim Schumann, Jeffrey P. Cunningham, 

and Marlys K. Braun for Petitioner.

No appearance for Respondent.

Dordick Law Corporation, Gary A. Dordick and John M. Upton for Real 

Party in Interest Christina Demirelli.
2

After having consumed excessive amounts of alcohol, Christina Demirelli 

left a restaurant in the Fashion Island shopping center (Fashion Island) and walked

through a nearby parking structure while engaging in “displays of nonsensical 

horseplay.” She found herself on an upper story of the parking structure where she seated 

herself on a 43-inch tall perimeter wall, lost her balance, and fell backward out of the 

structure to the ground several stories below. Demirelli sustained serious injuries. 

Demirelli sued The Irvine Company, which owned the parking structure,

for premises liability, alleging the parking structure had a physical defect or dangerous 

condition. The Irvine Company filed a motion for summary judgment which the trial 

court denied. The Irvine Company filed a petition for writ of mandate, and we issued an 

order to show cause. We now grant The Irvine Company’s petition. 

In her opposition, Demirelli conceded the parking structure did not have a

physical defect or dangerous condition. In the stead of her original theory, Demirelli 

asserted a new theory of liability—The Irvine Company had assumed a duty to her by 

hiring a security company charged with detecting and stopping horseplay according to the 

Fashion Island Code of Conduct. She argued The Irvine Company was liable for the 

security company’s negligence in enforcing that code.

According to the California Supreme Court’s decision in Delgado v. Trax 

Bar & Grill (2005) 36 Cal.4th 224, 248–249 (Delgado), such a theory of liability is not 

one of premises liability, but of negligent undertaking. The Delgado court explained “a 

defendant’s undertaking will support the finding of a duty to another only if (a) the 

defendant’s action increased the risk to another, or (b) the other person reasonably relied 

upon the undertaking to his or her detriment.” (Id. at p. 250.) 

Here, The Irvine Company’s retention of security services did not increase 

any risk to Demirelli and she did not rely on that undertaking to her detriment. 

Therefore, The Irvine Company did not owe a duty to Demirelli and summary judgment

should have been granted.
3

SUMMARY OF UNDISPUTED FACTS AND DEMIRELLI’S

ADDITIONAL MATERIAL FACTS

I.

THE INCIDENT

On Sunday, July 14, 2019, Demirelli and her friend and roommate Emily 

Yoder, both in their mid-twenties, went to the Xanadu Café in Newport Beach for brunch 

and “‘bottomless mimosas.’” Beginning around 3:00 p.m., Demirelli consumed four to 

five alcohol beverages (mimosas) at Xanadu Café. 

Demirelli and Yoder decided to “walk off” their intoxication by shopping at 

Fashion Island. They ended up at the Yard House restaurant in Fashion Island (Yard 

House) where, starting around 7:00 p.m., Demirelli consumed four gin martinis and 

smoked marijuana to the point that she was in a “‘state of significant intoxication’” and a 

danger to herself. Yoder drank two stout beers and one vodka martini. The only food 

they had on their bar tab at Yard House that evening was a single order of Edamame 

soybeans. The bartender thought Demirelli appeared drunk and Yoder appeared 

“‘buzzed’” while she served them that evening. 

About 30 minutes after arriving at Yard House, Demirelli and Yoder 

engaged in “‘disruptive acts.’” The bartender observed Demirelli and Yoder acting in an 

obnoxious manner; Yoder was crying loudly and Demirelli was yelling at her and giving 

her advice. Demirelli and Yoder were eventually asked to leave the restaurant. 

At approximately 10:10 p.m., Yard House employee Justin Harris (a named 

defendant in Demirelli’s lawsuit) encountered Demirelli and Yoder leaving the 

restaurant. Harris walked with them towards and then into the lowest level of the parking 

structure adjacent to the restaurant and then up to one of the higher levels. As the group 

walked to and through the parking structure, Demirelli “began rolling around on the floor 

of the structure, doing cartwheels, and [engaging in] similar displays of nonsensical 

horseplay.” Demirelli “‘exhibited behaviors indicative of extreme intoxication.’” She 
4

had irrational and unintelligible speech, was unsteady in her walking, would sit and squat 

down at random times, had difficulty putting on her shoes, and had difficulty maintaining 

her equilibrium. After Demirelli went up a flight of stairs and Yoder followed, Harris left 

them and the structure.

About 15 minutes after Harris had left, Demirelli was seated on a

“perimeter wall on what was likely an upper story of the parking garage with her legs to 

the inside of the structure and her back toward the outside.” Yoder saw Demirelli sitting 

on the perimeter wall for several minutes and warned Demirelli, saying something to the 

effect of “‘Don’t do that’” and “‘Be careful.’” Around 11:00 p.m., Demirelli lost her 

balance and fell backward out of the parking structure and to the ground several stories 

below. Demirelli sustained serious injuries, including a traumatic spinal cord injury. 

Demirelli’s blood alcohol level was determined to be 0.30% from an 11:30 p.m. blood 

draw.

Demirelli and Yoder did not have any reason to be in the parking structure 

that evening, as neither had driven a vehicle to Fashion Island. Demirelli does not have 

any independent memory of the incident. She does not know how she got onto a 

perimeter wall of the parking structure or why she fell from the perimeter wall. Both 

Demirelli and Yoder believe that sitting on an elevated perimeter wall of a parking 

structure is dangerous. 

II.

THE PARKING STRUCTURE’S CONDITION

The 43-inch vertical height of the perimeter wall panels of the parking 

structure east of “Stairway [No.] 5” on the second through fourth levels met and 

exceeded the 42-inch minimum vertical height requirement of the applicable building 

code and complied with the building plan specifications for such wall panels. The 

lighting conditions in the parking structure located east of stairway No. 5, on the second 
5

through fourth levels, met and exceeded the applicable lighting requirements of the City 

of Newport Beach Municipal Code. 

The perimeter wall panel of the parking structure from which Demirelli fell 

(whether on its second, third, or fourth level) did not present any dangerous condition and 

was safe for pedestrians using reasonable care. Neither that perimeter wall panel, nor its 

surrounding area, presented any characteristic which would have invited a pedestrian to 

climb or sit atop the wall panel.1 

Prior to the incident, The Irvine Company regularly inspected the parking 

structure and did not observe any problems or safety issues regarding the perimeter wall 

of the parking structure. “No department, agency, or other body of the government of the 

County of Orange or City of Newport Beach has issued any notice of violation or any 

other type of notice regarding the perimeter wall of [the] Parking Structure.” Up until 

Demirelli filed the complaint, no entity or person had complained, otherwise stated, or 

provided notice to The Irvine Company that the perimeter wall of the parking structure 

presented any type of hazard or danger. 

None of the other defendants in this action, including Yard House or Harris, 

has ever been the agent, servant, or employee of or a joint venturer with The Irvine 

Company. 

III.

SECURITY SERVICES AT FASHION ISLAND

The Irvine Company owns Fashion Island, including the subject parking 

structure. The Irvine Company contracted with Universal Protection Service, doing 

business as Allied Universal Security Services (Allied), to provide security services at 

1

 In her responsive separate statement, Demirelli stated this fact is disputed because 

“[s]omething about it enticed [her] onto it.” But Demirelli also testified at her deposition

she had no memory of the incident and that her last memory was sitting at the bar top at 

Yard House. 
6

Fashion Island. Pursuant to The Irvine Company’s contract with Allied, the scope of 

security services to be provided included: (1) identifying and reporting security and 

safety issues, including fire hazards, leaking water pipes, and unlocked security doors; 

(2) ensuring prompt action is taken to prevent or minimize losses, accidents, fire, 

property damage, safety hazards, and security incidents; (3) warning violators of rule 

infractions such as loitering, smoking, or possession of contraband articles; 

(4) monitoring throughout security personnel shifts “all Common area corridors, 

sidewalks, roads, alleys, food courts, and people spaces for trash, debris, shopping carts, 

spills, hazards or property damage”; and (5) assisting The Irvine Company “by resolving 

any issue (example: picking up trash, cleaning up spills, shopping cart return) or 

report[ing] any liability issues (example: trip and fall hazards, utility failure, etc.) to [The 

Irvine Company] immediately.” The contract also provided that Allied would train 

replacement security professionals on property procedures before “standing post.” 

The Irvine Company and Allied jointly developed a Security Operations 

Procedure Manual pertaining to Fashion Island, within which is the Fashion Island Code 

of Conduct. Fashion Island’s security team and Allied were responsible for enforcing the 

code of conduct in effect on the date of the incident. The Security Operations Procedure 

Manual provides, inter alia: (1) security staff will focus on maintaining a visible security 

presence in all areas of the property and are responsible for providing customer service, 

detecting and responding to potential and actual safety concerns, and otherwise helping 

“prevent and/or reduce liability situations”; (2) security employees must continuously and 

proactively patrol their assigned areas, unless assigned to a fixed post position; and 

(3) Allied “should ensure that officers using the system are fully trained on how to 

operate the system as it was designed, including CCTV [(closed circuit television)], alarm 

monitoring, access control and call stations.”

The Fashion Island Code of Conduct prohibits Fashion Island visitors from 

“[r]unning, shouting, skateboarding, skating, rollerblading, riding a bicycle, scooter or 
7

Segway, horseplay, throwing of any objects, disorderly or disruptive conduct of any type 

or engaging in activities which unreasonably obstruct or interfere with the free flow of 

vehicular or pedestrian traffic.” 

IV.

DEMIRELLI’S SECURITY EXPERT

Demirelli’s security expert Michael Glasser opined Allied personnel failed 

to follow portions of the Security Operations Procedure Manual requiring Allied to 

provide adequate supervision and training of their security personnel assigned to the 

CCTV console at Fashion Island. He explained Allied was contractually required to

detect and report security and safety issues, but failed to detect and put a stop to

Demirelli’s horseplay in the parking structure and otherwise warn Demirelli and Yoder 

that they were in violation of the code of conduct. 

The security professional assigned to the CCTV console post on the 

evening of July 14, 2019 was a new hire whose training at that time was incomplete. The 

more experienced security professional who accompanied the new security professional

in training had been in the break room at the time Demirelli was engaged in horseplay 

activities. The new security professional, who was unsupervised at the time, did not 

detect Demirelli’s behavior was problematic and Allied did not dispatch officers to 

Demirelli’s location in the parking structure “to resolve the issue before it escalated.” 
8

PROCEDURAL HISTORY

I.

THE FIRST AMENDED COMPLAINT

In March 2020, Demirelli filed her lawsuit and, a few months later, filed 

and served her first amended complaint for damages. In her first amended complaint, 

Demirelli asserts a single claim against The Irvine Company for premises liability. 

In support of the premises liability claim, the first amended complaint 

alleged The Irvine Company “negligently and carelessly owned, operated, secured, built, 

constructed, developed, designed, maintained, inspected, repaired, [and] managed the 

Premises.” The first amended complaint alleged The Irvine Company was negligent by

“failing to provide adequate and safe perimeter walls of the structure” and by “failing to 

take reasonable steps to eliminate the risks and dangers” they posed. The first amended 

complaint further alleged: “As a direct and proximate result of said dangerous and unsafe 

conditions of the premises, Plaintiff was caused to sustain injuries and damages as set 

forth herein.” 

The first amended complaint also contained claims for negligent 

undertaking and for negligent hiring, supervision, training, and/or retention against Yard 

House and other named defendants who are not parties to these writ proceedings. 

II.

THE MOTION FOR SUMMARY JUDGMENT AND DEMIRELLI’S OPPOSITION

In August 2021, The Irvine Company filed a motion for summary judgment 

in which it argued: (1) the perimeter wall of the parking structure did not present any 

dangerous condition; (2) Demirelli’s “extreme misuse of the perimeter wall of parking 

structure no. 2 at the Fashion Island Shopping Center was not reasonably foreseeable, and 

Irvine Company as a matter of law thus did not owe a duty to take the measures alleged 

by [Demirelli]”; and (3) “Irvine Company did not have actual or constructive notice of 

the claimed ‘dangerous condition,’ including where prior to the subject incident, no 
9

person had fallen from the perimeter wall or any parking structure, including parking 

structure no. 2, of the Fashion Island Shopping Center.” (Boldface and some 

capitalization omitted.)

Demirelli filed an opposition to the motion. In support of her opposition

Demirelli submitted, inter alia, Glasser’s declaration; excerpts from her own deposition,

Yoder’s deposition, and from those of several other percipient witnesses; and excerpts 

from the parties’ discovery responses. 

Demirelli did not request a continuance of the hearing on the motion for 

summary judgment or otherwise argue she had not completed any discovery that might 

be relevant to defend against it.

III.

THE TRIAL COURT DENIES THE MOTION FOR SUMMARY JUDGMENT

The trial court denied The Irvine Company’s motion, finding the evidence 

provided by Demirelli’s expert witness on security services “raised numerous triable 

issue[s] of material fact[].” In its minute order, the trial court explained: 

“‘[Allied] failed to provide adequate training of the “Security Professional”

that was assigned to Fashion Island CCTV Console. Failure to provide appropriate 

training failed to meet the standard of care for providing security services of this 

type.[’] . . . ‘Pursuant to the Division Services Contract between the Irvine Company and 

[Allied], [Allied] was required to warn violators of rule infractions. [Allied] failed to 

warn Christina Demirelli and Emily Yoder that they were in violation of the Fashion 

Island Code of Conduct, based on their conduct in [the parking structure].’ . . . ‘Based on 

the Daily Activity Log of Mr. Gonzalez, it appears Mr. Gonzalez was in the Break Room 

and not at the CCTV Console at 22:25.’ . . .

“‘[Allied] failed to recognize the activities of Christina Demirelli as 

suspicious or unusual, which is one of the responsibilities of the Security Professional 

who is monitoring the CCTV consoles.’ . . . ‘[Allied] failed to dispatch officers to the 
10

locations of Christina Demirelli’s activities in parking structure #2 to resolve the issue 

before it escalated, pursuant to the Security Operations Procedure Manual, which states 

that, officers working at the console were not only responsible for monitoring the 

cameras and other systems, but more importantly for directing the center’s security 

patrol.’ . . .

“‘In Mr. Glasser’s opinion, The Security Professionals fell far short of their 

responsibilities with respect to proactively looking for anyone who needed any sort of 

assistance and code of conduct violations including identifying Christina Demirelli’s 

activities in [the parking structure] prior to the incident.’ . . . ‘Mr. Glasser opines that 

based on the breaches of the standard of care by the Irvine Company and [Allied], 

Christina Demirelli fell from [the parking structure] and was severely injured on the date 

of the subject incident.’ . . .

“Thus, [Demirelli] has raised a number of triable issues of material fact.”2 

2

 In its minute order, preceding its discussion under the heading “Triable Issues of 

Material Facts” (boldface omitted), the trial court stated The Irvine Company “potentially 

has a duty of due care, because of the special relationship with Plaintiff.” The idea of a 

special relationship appears to have been first raised by the trial court at this stage of the 

litigation; Demirelli had not pleaded a special relationship and no party raised the issue of 

the existence of a special relationship in any of the papers submitted in connection with 

the motion for summary judgment. 

 The trial court cited Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 893, which 

states: “‘As a rule, one has no duty to come to the aid of another. A person who has not 

created a peril is not liable in tort merely for failure to take affirmative action to assist or 

protect another unless there is some [special] relationship between them which gives rise 

to a duty to act.’ [Citation.] ‘Typically, in special relationships, “the plaintiff is 

particularly vulnerable and dependent upon the defendant who, correspondingly, has 

some control over the plaintiff’s welfare. [Citation.]” [Citation.] A defendant who is 

found to have a “special relationship” with another may owe an affirmative duty to 

protect the other person from foreseeable harm, or to come to the aid of another in the 

face of ongoing harm or medical emergency.’”

 No party has cited any relevant legal authority, and we have found none, supporting the 

proposition that a special relationship existed between Demirelli and The Irvine 

Company to protect against the harm Demirelli suffered in this case. There are no 
11

IV.

THE PETITION FOR WRIT OF MANDATE

The Irvine Company challenged the trial court’s order by filing a petition 

for writ of mandate in this court, requesting issuance of a writ of mandate directing the 

respondent court to vacate its order denying the motion for summary judgment and enter 

an order granting the motion for summary judgment. In the petition, The Irvine 

Company argues, inter alia, as a matter of law, it owed no duty to provide security at the 

parking structure to prevent Demirelli from harming herself. Demirelli filed preliminary 

opposition to the petition and The Irvine Company filed a reply brief.

This court issued an order to show cause why mandate or other appropriate 

relief should not issue. We ordered Demirelli to file a formal return to the petition, 

invited any other real party in interest to file a formal return to the petition, and ordered 

The Irvine Company to file a formal reply thereafter. 

Demirelli filed a formal return and The Irvine Company filed a formal reply

accordingly. 

DISCUSSION

I.

GOVERNING LEGAL STANDARDS AND STANDARD OF REVIEW

“An order denying a motion for summary judgment may be reviewed by 

way of a petition for writ of mandamus. [Citations.] ‘“Where the facts are undisputed 

and the law establishes the right of a party to an order or to the relief which the court has 

refused, the writ will lie.”’ [Citation.] A writ of mandamus will issue when the denial of 

allegations or evidence showing Demirelli was dependent upon The Irvine Company or 

that The Irvine Company had any control over her welfare. To the contrary, Demirelli’s 

current theory of liability is The Irvine Company (vis-à-vis Allied) failed to assert control 

over Demirelli and stop her horseplay. Furthermore, there is no contention The Irvine 

Company failed to come to Demirelli’s aid following the incident.
12

a motion for summary judgment results in a trial on a nonactionable claim.” (LeFiell 

Manufacturing Co. v. Superior Court (2014) 228 Cal.App.4th 883, 891, citing Code of 

Civ. Proc. § 437c, subd. (m)(1); see General Atomics v. Superior Court (2021) 64 

Cal.App.5th 987, 1001–1002 [same].)

“‘On review of an order granting or denying summary judgment, we 

examine the facts presented to the trial court and determine their effect as a matter of 

law.’ [Citation.] We review the entire record, ‘considering all the evidence set forth in 

the moving and opposition papers except that to which objections have been made and 

sustained.’ [Citation.] Evidence presented in opposition to summary judgment is 

liberally construed, with any doubts about the evidence resolved in favor of the party 

opposing the motion. [Citation.] [¶] Summary judgment is appropriate only ‘where no 

triable issue of material fact exists and the moving party is entitled to judgment as a 

matter of law.’ [Citation.] A defendant seeking summary judgment must show that the 

plaintiff cannot establish at least one element of the cause of action. 

[Citation.] . . . ‘Duty, being a question of law, is particularly amenable to resolution by 

summary judgment.’” (Regents of University of California v. Superior Court (2018) 4 

Cal.5th 607, 618, italics added.)

II.

DEMIRELLI HAS ABANDONED ANY THEORY OF PREMISES LIABILITY BASED ON A

PHYSICAL DEFECT OR DANGEROUS CONDITION

Demirelli asserted a single claim against The Irvine Company for premises 

liability expressly based on allegations the parking structure and/or its features were 

physically defective and/or had a dangerous condition. In her opposition to the motion 

for summary judgment, Demirelli abandoned these allegations of physical defect or 

dangerous condition as the basis for her claim against The Irvine Company, stating she 

“is not disputing the aspects of [The Irvine Company]’s Motion that the physical 

configuration of Parking Structure No. 2 in general, or the perimeter wall specifically, did 
13

not present a dangerous condition.” (Italics added.) She also did not challenge the 

evidence presented by The Irvine Company showing the parking structure, including the 

perimeter wall, were up to code and without physical defect or a dangerous condition. In 

her responsive separate statement, Demirelli agreed the following fact identified in The 

Irvine Company’s moving papers was undisputed: “The perimeter wall panel of Parking 

Structure No. 2 from which Plaintiff fell in the Subject Incident (whether on its second 

(‘P2’), third (‘P3’) or fourth (‘P4’) level) did not present any dangerous condition and 

was safe for pedestrians using reasonable care.”

In addition, Demirelli acknowledged the following facts proposed by The 

Irvine Company in support of its motion were “[u]ndisputed”: (1) “The 43-inch vertical 

height of the perimeter wall panels of Parking Structure No. 2 located east of 

Stairway #5, on its [second through fourth] levels, met and exceeded the 42-inch 

minimum vertical height requirement of the applicable Building Code” and the panels 

“were constructed in compliance with the building plan[] specifications for such wall 

panels”; (2) “The lighting conditions in Parking Structure No. 2 located east of 

Stairway #5, on its [second through fourth] levels, met and exceeded the applicable 

lighting requirements of the City of Newport Beach Municipal Code”; (3) “Prior to the 

[s]ubject incident, The Irvine Company regularly inspected the parking structure and did 

not observe any problems or safety issues regarding the perimeter wall of the parking 

structure”; (4) “No department, agency or other body of the government of the County of 

Orange or City of Newport Beach has issued any notice of violation or any other type of 

notice regarding the perimeter wall of Parking Structure No. 2”; and (5) until Demirelli 

filed the complaint, “no entity or person had complained, otherwise stated or provided 

notice to [The] Irvine Company that the perimeter wall of Parking Structure No. 2 

presented any type of hazard or danger.” 

Based on Demirelli’s concessions, summary judgment should have been

granted to the extent her premises liability claim was based on a theory The Irvine 
14

Company breached any duty to her as a result of a physical defect or dangerous condition 

as to the perimeter wall or the parking structure in general.

III.

DEMIRELLI’S REMAINING THEORY OF LIABILITY IS NOT ONE OF PREMISES LIABILITY BUT 

OF NEGLIGENT UNDERTAKING PURSUANT TO DELGADO, SUPRA, 36 CAL.4TH 224

Having abandoned any theory of liability based on a physical defect or 

dangerous condition, Demirelli argued in her opposition to the motion for summary 

judgment The Irvine Company’s liability is based on the negligent failure of its security 

company Allied to detect and then stop Demirelli’s own horseplay, pursuant to the code 

of conduct Allied was retained by The Irvine Company to enforce. On such a theory of 

liability, Demirelli argued, her premises liability claim should survive summary 

judgment.

Demirelli did not include factual allegations supportive of her then current 

theory of liability in the first amended complaint.3 There are no references to Allied or 

the provision of security services generally in the first amended complaint. 

3

 In her formal return, Demirelli cited to the following portions of the first amended 

complaint in support of her argument “[t]he negligent performance of Petitioner’s 

security was always a part of RPI Demirelli’s claim”:

(1) in paragraph 34: the common areas of Fashion Island, including the parking 

structure “were owned operated, promoted, patrolled, secured, built, constructed 

developed, designed, maintained, inspected, repaired, managed[,] serviced or otherwise 

controlled by Defendants, and each of them”; 

(2) in paragraph 35: “Defendants, and each of them, . . . negligently and carelessly

owned, operated, secured, built, constructed, developed, designed, maintained, inspected, 

repaired, [and/or] managed the Premises”; and 

(3) in paragraph 40: “The premises were in a dangerous and unsafe condition due 

to the negligent discharge of mandatory and nondelegable duties, ownership, leasing, 

control, securing, operation, building, construction, engineering, development, design, 

maintenance, management, inspection, and/or repair of the premises, including the 

construction of short perimeter walls, flat on top and inviting persons to sit down, as well 

as lacking any sort of guardrails, barriers, fencing, or other fall prevention devices by said 

Defendants, and each of them.” (Italics added.)
15

In evaluating whether a triable issue of fact exists regarding Demirelli’s 

premises liability claim, it is significant Demirelli is clear she does not contend The 

Irvine Company had an affirmative duty to provide security services in the parking 

structure in the first place. Demirelli’s position is consistent with cases holding a 

landowner does not have a duty to provide elevated security measures to protect against

the unforeseeable criminal acts of third parties, much less against the self-endangering 

acts of a patron caused by the patron’s voluntary intoxication. For example, in Ann M. v. 

Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, disapproved of on other 

grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, footnote 5, the California 

Supreme Court held a shopping center’s owner’s duty to maintain common areas within 

its possession and control in a reasonably safe condition did not include a duty to provide 

security guards to protect against the criminal act of a third party under the facts of that 

case.

In Montes v. Young Men’s Christian Assn. of Glendale, California (2022) 

81 Cal.App.5th 1134, 1142, the appellate court concluded the defendant landowner in a 

wrongful death action based on premises liability and negligence owed no duty of care to 

a resident who had been drinking and had acted erratically before falling from the steep 

roof of the apartment building. The court explained: “[T]here are no other circumstances 

in this case that might explain why it was reasonably foreseeable Mr. Montes might 

choose to venture onto a steep sloping roof that was obviously dangerous. [Citation.] 

Plaintiffs ‘cannot use [Mr. Montes’s] voluntarily induced state of intoxication to claim 

that he was unaware of the obvious peril . . . .’” (See id. at p. 1142 [“The law, as we have 

just described it, is that defendant owed no duty to do anything to protect Mr. Montes 

from his voluntary, unnecessary, and uninvited risk taking”].)

In Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284, 1288–

1289, the appellate court explained: “‘“‘The applicable general principle is that the 

owner of the property, insofar as an invitee is concerned, is not an insurer of safety but 
16

must use reasonable care to keep his premises in a reasonably safe condition and give 

warning of latent or concealed peril. He is not liable for injury to an invitee resulting 

from a danger which was obvious or should have been observed in the exercise of 

reasonable care.’” [Citations.]’ [Citation.] [¶] Further, plaintiff cannot use his own 

voluntarily induced state of intoxication to claim that he was unaware of the obvious peril 

of climbing a fence designed to prevent a fall from a height of 15 feet to a concrete 

surface.”

Instead of arguing The Irvine Company owed her an affirmative duty to 

provide security to protect her from the harm she suffered, Demirelli argues that, upon 

retaining Allied to enforce the Fashion Island Code of Conduct, The Irvine Company 

assumed a duty that Allied would perform its contractual responsibilities. In her formal 

return, Demirelli states at pages 8, 13–14, and 34: “Contrary to the tenor of the Petition, 

the issue in this case involves the scope of an assumed duty to protect once a landowner 

has employed a guard service. The issue is not whether Irvine had a duty to employ[]

guards, but rather the scope of that duty which can only be determined from a factual 

examination of the services actually provided by the guards within and beyond the scope 

of any written contract.” (Italics added.) 

Pursuant to the Supreme Court’s decision in Delgado, supra, 36 Cal.4th at 

pages 248–249, Demirelli’s current theory of liability is not one of “premises liability” 

but of the “related but separate doctrine” of negligent undertaking. In Delgado, the 

Supreme Court made this distinction in its review of the conflict that had arisen between 

the appellate court’s decision in the case before it and the appellate court’s decision in 

Mata v. Mata (2003) 105 Cal.App.4th 1121 (Mata). 

In Mata, a disgruntled customer who had been removed from a bar later 

returned and fired shots into the bar, killing one and injuring several others. (Id. at 

pp. 1126–1127.) The bar proprietor was sued on a premises liability theory based on the 

alleged negligence of its hired security during the incident. (Id. at pp. 1124, 1126, 1129.) 
17

The appellate court in Mata, supra, 105 Cal.App.4th 1121 reversed an order granting 

summary judgment, holding that when a bar proprietor voluntarily employs a guard on its 

premises, the proprietor has “assumed” a “duty to protect” its patrons from criminal 

assault “and therefore the issue of foreseeability becomes irrelevant.” (Id. at p. 1128.) 

The Supreme Court in Delgado court stated, “[W]e believe it is appropriate 

at this time to address the Mata decision and to explain why we, like the Court of Appeal, 

find some of the language and analysis of Mata to be overbroad and potentially 

misleading.” (Delgado, supra, 36 Cal.4th at p. 247.) It explained the Mata court’s 

determination a duty existed “may have been influenced by the appellate court’s 

understanding of a related but separate doctrine—the negligent undertaking doctrine.” 

The Delgado court elaborated: 

“Our cases establish that a volunteer who, having no initial duty to do so, 

undertakes to provide protective services to another, will be found to have a duty to 

exercise due care in the performance of that undertaking if one of two conditions is met:

either (a) the volunteer’s failure to exercise such care increases the risk of harm to the 

other person, or (b) the other person reasonably relies upon the volunteer’s undertaking 

and suffers injury as a result. Even if the court in Mata may have been influenced by that 

doctrine, however, the decision’s broad language failed to recognize the important 

limitations and qualifications of that doctrine.

“Mata indicated in expansive terms that by hiring a guard a proprietor 

necessarily assumes a general duty to protect its patrons. We disagree. First, the scope 

of any duty assumed depends upon the nature of the undertaking. [Citation.] Merely 

because a supermarket or other similar enterprise ‘chooses to have a security program’

that includes provision of a roving security guard does not signify that the proprietor has 

assumed a duty to protect invitees from third party violence. [Citation.] A store that 

hires a ‘security officer’ to guard its interior ‘cash office’ for three hours each day does 

not assume a duty to protect a customer who is injured in the store’s exterior parking lot 
18

by the criminal act of a third party. [Citation.] Second, as noted, ante, a defendant’s 

undertaking will support the finding of a duty to another only if (a) the defendant’s action 

increased the risk of harm to another, or (b) the other person reasonably relied upon the 

undertaking to his or her detriment. [Citation.] The court in Mata did not consider 

whether the imposition of liability in that case was consistent with these limitations.

“Finally, contrary to the implications of Mata’s broad language [citation], 

foreseeability remains a highly relevant factor—even in cases in which a legal duty is 

found (and regardless of the doctrine under which it is found). For example, even when a 

proprietor voluntarily has employed one or more guards and properly is found to owe a 

duty to patrons, foreseeability remains relevant to the fact finder’s determination of 

breach and causation.” (Delgado, supra, 36 Cal.4th at pp. 248–250, fn. omitted.)

As discussed ante, Demirelli does not take and has not taken the position 

The Irvine Company owed a general duty to retain security for the parking structure, but 

that it assumed a duty to provide security upon hiring Allied to enforce the Fashion Island 

Code of Conduct. As such, in light of Delgado, supra, 36 Cal.4th 224, Demirelli’s theory 

of liability against The Irvine Company is one of negligent undertaking and not premises 

liability. 

In her formal return, Demirelli tacitly acknowledges her theory of liability 

against The Irvine Company is for a negligent undertaking, ultimately noting: “The 

Petition should be denied because ‘there may be fact questions “about precisely what it 

was the defendant undertook to do.” That is, while “[t]he ‘precise nature and extent’ of 

[an alleged negligent undertaking] duty ‘is a question of law . . . “it depends on the nature 

and extent of the act undertaken, a question of fact.”’”’” (Bracketed material in original, 

italics added.) 

Consequently, no triable issue of fact exists as to the pleaded theory of 

premises liability against The Irvine Company.
19

IV.

DEMIRELLI FAILED TO PLEAD A NEGLIGENT UNDERTAKING AGAINST THE IRVINE 

COMPANY IN THE FIRST AMENDED COMPLAINT

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

the boundaries of the issues to be resolved at summary judgment.’”’ [Citation.] ‘[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 (Jacobs).)

Here, although Demirelli pleaded a claim for negligent undertaking against 

other defendants in the first amended complaint, she neither pleaded such a claim against 

The Irvine Company nor included allegations suggesting her theory of liability, however 

titled, was based on a breach of an assumed duty to provide security services to enforce 

the Fashion Island Code of Conduct.4 A fair reading of the first amended complaint’s 

allegations does not suggest a negligence claim against The Irvine Company based on 

anything other than the physical condition of the parking structure and perimeter wall. 

As “[t]here [was] no mention, suggestion, or any facts alleged that would put a 

reasonable defendant on notice” Demirelli was claiming The Irvine Company was 

4

 In its minute order, the trial court stated Demirelli had alleged The Irvine Company 

negligently patrolled, secured and/or otherwise controlled the Premises by failing to take 

reasonable steps to eliminate the risks and dangers “‘to guests making use of the Premises 

by . . . failing to hire competent employees, agents, and/or contractors to secure the safety 

of patrons and invitees; failing to provide adequate security; failing to keep the Premises 

safe for patrons, invitees and residents; . . . and/or make sure the Premises had adequate 

and sufficient safety measures to guard against accidental fails.’” However, the above 

quoted material does not appear in the first amended complaint. 
20

negligent with respect to the code of conduct, The Irvine Company’s motion for summary 

judgment did not need to address that claim. (Jacobs, supra, 14 Cal.App.5th at p. 444.)

Furthermore, our record does not show Demirelli sought to amend the first 

amended complaint to include allegations relevant to her current theory of liability 

against The Irvine Company. (See Jacobs, supra, 14 Cal.App.5th at p. 445 [“Plaintiffs 

could have sought to amend their complaint, and their failure to do so precluded them 

from defeating [the defendant’s] motion for summary judgment based on their new 

theory”].)

V.

EVEN IF DEMIRELLI’S NEGLIGENT UNDERTAKING CLAIM AGAINST THE IRVINE COMPANY 

HAD BEEN PROPERLY PLEADED, NO TRIABLE ISSUE OF FACT EXISTS AS TO THAT CLAIM

Even assuming Demirelli had properly pleaded a negligent undertaking 

claim against The Irvine Company, no triable issue of fact exists as to that claim either. 

(Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 114 (Hanouchian) [“‘Whether the 

defendant’s undertaking, if proven, gave rise to a duty of care is a question of law for the 

court to decide’”].) 

As discussed ante, the Supreme Court in Delgado, supra, 36 Cal.4th at 

pages 249–250 explained: “First, the scope of any duty assumed depends upon the nature 

of the undertaking. . . . Second . . . a defendant’s undertaking will support the finding of 

a duty to another only if (a) the defendant’s action increased the risk of harm to another, 

or (b) the other person reasonably relied upon the undertaking to his or her detriment.” 

(Italics added; see Golick v. State of California (2022) 82 Cal.App.5th 1127, 1148 

[“Failing to eliminate a preexisting risk of harm does not satisfy the element of increased 

risk required to establish a negligent undertaking”].)

Here, even if we presume The Irvine Company assumed a duty to protect

Demirelli from harming herself by hiring Allied to detect and stop horseplay in the 

parking structure, nothing in the record creates a triable issue of material fact such an 
21

undertaking increased the risk of harm to Demirelli or that Demirelli reasonably relied on 

The Irvine Company’s undertaking to her detriment. If anything, by retaining Allied, The 

Irvine Company decreased the risk of harm by increasing the chance security officers 

might detect and stop Demirelli before she injured herself; it did not create any new peril 

by doing so. Furthermore, no evidence shows Demirelli relied on the presence of 

security to stop her from engaging in horseplay and from ultimately sitting on the 

perimeter wall. To the contrary, Demirelli testified she remembers nothing about the 

incident, or ever being inside the parking structure—a parking structure she had no 

reason to enter in the first place. 

The appellate courts’ decisions in University of Southern California v. 

Superior Court (2018) 30 Cal.App.5th 429, 436–437, disapproved on other grounds in 

Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 221, footnote 9 (Southern California) 

and Hanouchian, supra, 51 Cal.App.5th 99 are consistent with our conclusion. 

In Southern California, a party attendee sued a university after she was 

pushed from a makeshift platform and injured at an off-campus fraternity party where 

alcohol was served. (Southern California, supra, 30 Cal.App.5th at pp. 436–437.) The 

plaintiff maintained the university, “by adopting policies regarding alcohol use and social 

events and providing a security patrol both on and off campus,” had assumed a duty to 

protect party attendees from third party conduct at fraternity parties. (Id. at p. 449.) The 

Southern California court disagreed. First, the court concluded the university’s 

undertaking did not increase the risk of harm: “By establishing policies governing 

fraternities, providing a security patrol with authority to enforce those policies both on 

and off campus, and failing to enforce those policies by shutting down the [fraternity] 

party after it began or preventing the party from occurring in the first place, [the 

university] did not create any new peril.” (Id. at p. 450.)

Second, the Southern California court determined the plaintiff could not 

show she “actually or reasonably relied” upon the alleged safety policies: “Despite her 
22

deposition testimony that she relied on [the university’s public safety department] to 

protect her, there is no indication that her awareness of the existence of [the public safety 

department] caused her to behave any differently. [Citation.] The evidence also does not 

support her claim that any reliance was reasonable. [The plaintiff] acknowledged that the 

party was ‘very large, very crazy, packed and crowded,’ and there was no visible security 

or control. Alcohol was plentiful. . . . [The plaintiff] stepped onto a makeshift raised 

platform to dance with her friends amid other partygoers and was bumped off the 

platform and fell to the ground. In these circumstances, any reliance on [the university] 

or [its public safety department] to protect her from harm was unreasonable.” (Southern 

California, supra, 30 Cal.App.5th at pp. 450–451, fn. omitted.)

In Hanouchian, supra, 51 Cal.App.5th 99, the plaintiff sued members of a 

sorority after he was assaulted by two intoxicated partygoers at the defendants’ 

off-campus residence. (Id. at pp. 103, 105.) The appellate court affirmed the trial court’s 

order which sustained the defendants’ demurrers “and entered a judgment of dismissal, 

concluding [defendants] did not owe Plaintiff a legal duty to follow the [university’s] 

protocols.” (Id. at p. 103.) The appellate court held: “Just as the university in Southern 

California did not increase the risk of harm by failing to enforce policies that required it 

to shut down the fraternity party, so too [defendants] did not increase the risk of harm to 

Plaintiff by throwing an open party in violation of the safety protocols their sorority had 

agreed to with [the university]. (See Southern California, supra, 30 Cal.App.5th at 

p. 450; see also City of Santee v. County of San Diego (1989) 211 Cal.App.3d 1006, 

1015–1016 [The ‘increased risk’ element of the negligent undertaking doctrine is not 

satisfied where the defendant merely ‘fail[ed] to eliminate a preexisting risk.’].)” 

(Hanouchian, supra, 51 Cal.App.5th at p. 115.)

The Hanouchian court’s analysis continued: “Nor can Plaintiff prove he 

actually and reasonably relied upon [the university]’s safety protocols. The operative 

complaint alleges, on information and belief, that the protocols required, among other 
23

things, security, a guest list, and limits on alcohol. But Plaintiff admits that, upon 

entering the party, he ‘observed’ there was no guest list or anyone checking identification 

(in fact, he was an uninvited attendee); there was ‘no security present’; and ‘many people 

at the party were openly taking or consuming illegal drugs.’ Even if Plaintiff could allege 

he knew about the safety protocols at the time he attended the party (which he does not), 

he cannot possibly prove based on these facts that he reasonably relied upon the protocols 

to protect him.” (Hanouchian, supra, 51 Cal.App.5th at p. 115.)

For the all the above reasons, no triable issue of material fact exists as to 

Demirelli’s negligence claim against The Irvine Company. The trial court therefore erred 

by denying the motion for summary judgment.

DISPOSITION

The petition for writ of mandate is granted. Let a writ of mandate issue 

directing the trial court to vacate its order denying The Irvine Company’s motion for 

summary judgment. Petitioner to recover costs in this proceeding.

MOTOIKE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.
Filed 10/24/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE IRVINE COMPANY LLC,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

CHRISTINA DEMIRELLI,

 Real Party in Interest.

 G061791

 (Super. Ct. No. 30-2020-01137834)

 ORDER GRANTING REQUEST 

FOR PUBLICATION

Darden Restaurants, Inc., Yard House USA, Inc., Jerome Erickson, and 

Justin Harris, who are defendants in the underlying action, have filed a request that our 

opinion, filed September 28, 2023, be certified for publication. Petitioner The Irvine 

Company LLC has filed a notice of joinder in the request to publish. It appears that our 

opinion meets the standards set forth in California Rules of Court, rule 8.1105(c)(2) and 

(3). The request is GRANTED. The opinion is ordered published in the Official Reports. 

MOTOIKE, J.

I CONCUR:

MOORE, ACTING P. J.