Filed 9/28/23 ; certiified for publicat ion 10/2 4/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE I RVINE COMPANY LLC,
Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
CHRISTINA DEMIRELLI,

Real Part y 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 appearanc e for Respondent. Dordick Law Corporation, Gary A. Dordick and John M. Upton for Real Party in Interest Christina Demirelli.2 A fter having consumed excessive amounts of alcohol, Christin a Demirelli
left a restaurant in the Fashion Island s hopping c enter (Fashi on Island) and walked through a nearby parking structure wh ile engaging in “displays of nonsensical horseplay

. ” She f

ound herself on an upper story of the parking structure where she seated
herself on a 43

- inch tall perimeter wall, lost her ba lance , 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 p hysical defect or dangerous
condition. The Irvine Company filed a motion for summary judgment which t he 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

assert ed 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 C ode of C onduct . She argued The Irvine Company was liable for the security company’s negligence in enforcing th at code

.

According to the California Supreme Court ’s decision in Delgado v. Trax
Bar & Grill (2005) 36 Cal.4 th 224, 248

– 249 ( Delgado ) , such a theory of liability is not one of premises liability, but of negligent under taking. 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

. Theref ore, 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.
T HE I NCIDENT O n Sunday, July 14, 2019, Demirelli and her friend and roommate Em ily 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 t o “ walk off ” their intoxication by shopping at
Fashion Island. The y ended up at the Yard House r estaurant 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 beer s and one vodka martini. The only food they had on their bar tab at Yard House that evening wa s 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

. ’ ” T he 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.

A t approximately 10:10 p.m., Yard House employee Justin Harris (a named
defendant in Demirelli’s lawsuit ) encountered Demirelli and Y oder leaving the

r estaurant

. 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

. ’ ” She4

had i rrational and unintelligible speech, was unsteady in her walking, would sit and squat
down at random times, had difficulty putting on her shoes, and ha d difficulty maintaining her equilibrium. After Demirelli went up a flight of stairs and Yoder followed , Harris left
them and the structure.

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

“ perimeter wall on what was likely an upper st ory of the parking garage with her legs to
the inside of the structure and her back toward the outside. ” Yoder saw Demirell i 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 b lood a lcohol l evel was determined to be 0.30% from a n 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.

T H E P ARKING S TRUCTURE ’ S C ONDITION 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 appli cable b uilding

c ode 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 second5

through fourth levels , met and exceeded the applicable lighting req uirements 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
Cou nty 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 ] P arking S tructure. ” Up until Demirelli filed the complaint, no entity or person had complained, otherwise stated , o r 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 o f or a joint venturer with The Irvine Company.
III.

S ECURITY S ERVICE S AT F ASHION I SLAND 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
inf ractions such as loitering, smoking , or possession of contraband articles; (4) monitoring throughout security personnel shifts “ all C ommon area corridors, sidewalks, roads, alleys, food courts, and people spaces for trash, debris, shopping carts, spills, hazards or property damage ” ; and (5) assisting T he Irvine Company “ by resolving any issue ( e xample: picking up trash, cleaning up spills, shopping cart return ) or report [ing] any liability issues ( e xample: 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
Proce dure Manual pertaining to Fashion Island , within which is the Fashion Island C ode
of C onduct. Fashion Island’s security team and A llied were responsible for enforcing the

c ode of c onduct in effect on the date of the incident. The Security Operations Proc edure 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) s ecurity 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 or7

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.
D EMIRELLI ’ S S ECURITY E XPERT 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 o f 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 c ode of c onduct.

The s ecurity p rofessional assigned to the CCTV c onsole 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 b reak 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 p arking structure “to resolve the issue before it escalated.”8 PROCEDURAL HISTORY

I.
T HE F IRST A MENDED C OMPLAINT In March 2020, Dem i r e lli filed her lawsuit and, a few months later, filed
and served her first amended complaint for damages

. In her first a mended complaint,
Demirelli assert s a single claim against The Irvine Company for premises liability.

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

“ faili ng 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 an d unsafe conditions of the premises, Plaintiff was caused to sustain injuries and damages as set
forth herein. ”
The first amended complaint also contain ed claim s for negligent undertaking and f

or negligent hiring, supervision, training, and/or retention against Yard
House and other named defendants who are not parties to these writ proceedings.
II.
T HE M OTION FOR S UMMARY J UDGMENT AND D EMIRELLI ’ S O PPOSITION 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 a s 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, no9

person had fa llen 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
Dem irelli submitted , inter alia, Glasser’s declaration ; exce r pts 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 o therwise argue she had not completed any discovery that might be relevant to defend against it

. III.

T HE T RIAL C OURT D ENIES THE M OTION FOR S UMMARY J UDGMENT The trial court denied The Irvine Company’s m otion, 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 “ Securi ty 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 unusua l, which is one of the responsibilities of the Security Professional who is monitoring the CCTV consoles.’

. . . ‘[Allied] failed to dispatch officers to the10

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, b ut 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 c ode 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 relati onship with Plaintiff.” The idea of a special relationship appear s 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 r elationship 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.4 th 879, 89 3 , which state s : “‘ 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.] ‘ Typi cally, 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 relatio nship ” 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 no ne, 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 no11 IV.
T HE P ETITION FOR W RIT OF M ANDATE 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 gra n ti ng the motion for summary judgment. In the petition, The Irvine Company argue s , 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.
G OVERNING L EGAL S TANDARDS AND S TANDARD OF R EVIEW

“ An order denying a motion for summary judgment may be reviewed by way of a petition for writ of mandamus. [ C itations.] ‘ “ 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, t here 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.4 th 883, 89 1 , 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 d etermine 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 presente d 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 th e 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, i s particularly amenable to resolution by summary judgment .’ ” ( Regents of University of California v. Superior Court (2018) 4
Cal.5 th 607, 618 , italics added .) II. D EMIRELLI H AS A BANDONED A NY T HEORY OF P REMISES L IABILITY B ASED ON A

P HYSICAL D EFECT OR D ANGEROUS C ONDITION Demirelli a sserted a single claim against The Irvine Company for premises liability expressly based on allegations the parking structure and/or its features were physically defe ctive 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 s he “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, did13

not present a dangerous condition.” (Italics added.) She also did not challenge the
evi dence 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 ver tical 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) “T he lighting conditions in P arking S tructure 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 regard ing 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 P ar king S tructure 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 P arking S tructure No. 2 presented any type of hazard or danger. ”

Based on Demirelli’s concession s , summary judgment should have been granted to the extent her premises liability claim was based on a theory The Irvine14

Company breached any duty to her as a result of a physical defect or dangerous condition as to the p erimeter wall or the parking structure in general

. III. D EMIRELLI ’ S R EMAINING T HEORY OF L IABILITY I S N OT O NE OF P REMISES L IABILITY B UT OF N EGLIGENT U NDERTAKING P URSUANT TO D ELGADO , SUPRA , 36 C AL .4 TH 224 Having abandoned any theory of liability based on a physical defect or dangerous condition, Demir e lli 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 c ode
of c onduct 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 allegati ons supportive of her then current theory of liability in the f irst a mended c omplaint. 3 There are no references to Allied or the provision of security services generally in the f irst a mended c omplaint.

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 3 4: 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 3 5 : “Defendants, and each of them,

. . . negligently and careless ly 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 duti es, 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 invitin g persons to sit down, as well as lacking any sort o f guardrails, barriers, fencing, or other fall prevention devices by said Defendants, and each of them. ” ( I talics 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 a n affirmative duty to provide security services in the parking

structure in the first place

. Demirelli’s position is consistent with cases holding a landowner d oes 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 prote ct 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.5 th 1134, 1142 , the appellate court concluded the defendant landowner in a wrongful death action b ased 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 ca se 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

. Cal ifornia Sports , Inc. (19 8 8) 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 but16

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 in vitee 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 C ode of C onduct, The Irvine Company
assumed a duty that Allied would perform its contractual responsibilities. In her formal return, Demirelli states at page s 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.)

P ursuant to the Supreme Court’s decision in Delgado , supra , 36 Cal.4 th at
pages 248

– 249, Demirelli ’s current theory of liability is not on e 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 arise n between
the appellate court ’s decision in th e 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 w as sued on a premises liability theory based on the alleged neglige nce of its hired security during the incident. ( Id. at pp. 1124 , 1126 , 1 129 .)17

T he appellate court in Mata , supra , 105 Cal.App.4 th 1121 revers ed an order granting summary judgment, h olding 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.4 th 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 e laborated :

“ 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 co nditions 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 include s 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 lot18

by the criminal act of a third party. [Citation.] Second, as noted, ante , a defendant ’ s undertaking will support the finding of a du ty 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 liabi lity 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 doctrin e 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. ” ( Delg ado, supra , 3 6 Cal.4th at pp. 24 8

– 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
C o de of C onduct. As such, in light of Delgado, supra , 36 Cal.4th 224, Demirelli’s theory of liability agains t The Irvine Company is one of negligent undertaking and not premises liability.
In her formal r eturn, Demirelli tacitly acknowledges her theory of liability against The Irvine Company is for a negligent undertaking, ultimately noting: “The
Petition sho uld 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. ” ’” ’” (Bracket ed 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 I V

. D EMIRELLI F AILED TO P LEAD A N EGLIGENT U NDERTAKING A GAINST T HE I RVINE

C OMPANY IN THE F IRST A MENDED C OMPLAINT “The pleadings play a key role in a summary judgment motion and ‘“‘set the boundaries of the issues to be resolved at summary judgment.’”’ [Citati on.] ‘[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 al legations 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, 44 4 ( Jacobs ) .)

Here, although Demirelli plead ed a claim for negligent undertaking against
other defendants in the f

irst a mended c omplaint, she neither plead ed 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 C ode of C onduct. 4 A fair reading of the f irst a mended c omplaint’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 fact s alleged that would put a reasonable defendant on notice” Demirelli was claiming T he Irvine Company was

4 In its minute order, the trial court state d Demirelli had alleged The Irvine Company negligentl y 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 hi r e compete nt employees, agents, and / or contractors to secure t he 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 suffici ent safety measures to guard against accidental fails. ’ ” However, t he above quoted material does not appear in the first amended c omplaint.20

negligent with respect to the c ode of c onduct, The Irvine Company’s motion for summary judgment did not need to address that claim. ( Jacob s, supra , 14 Cal.App.5th at p. 444

. )

Furthermore, our record does not show Demirelli sought to amend the f irst
amended c omplaint to include allegations relevant to her current theory of liability against The Irvine Company. (See Jacobs, supra , 14 Cal.App.5th at p. 4 45 [“ 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. E VEN IF D EMIRELLI ’ S N EGLIGENT U NDERTAKING C LAIM A GAINST T HE I RVINE C OMPANY H AD B EEN P ROPERLY P LE A D ED , N O T RIABLE I SSUE OF F ACT E XISTS A S TO THAT C LAIM

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 ) [“‘Whe ther the defendant’s undertak ing , if proven, gave rise to a duty of care is a question of law for the court to decide’”].)

As discussed ante , th e 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
Demi relli 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 an21

undertaking increased the risk of harm to Demirelli or that Demirelli reasonably relie d 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 creat e any new peril by doing so

. Furthermore, n o evidence show s 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 universit y, “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 Californ ia 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 her22

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, v ery 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 p p . 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 P laintiff 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

– 101 6 [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 other23

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 cons uming 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. ” ( Ha nouchian, 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 appea rs 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.