Filed 5/2/16 Finnigan v. CLE of Monterey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

TIMOTHY FINNIGAN et al.,

Plaintiffs and Appellants,

v.

CLE OF MONTEREY, LLC,

Defendants and Respondents.

 H042124

 (Monterey County

 Super. Ct. No. M117861)

I. INTRODUCTION

At the time of his tragic death, Matthew Finnigan was a participant in the 

“College Living Experience” program provided by respondent CLE of Monterey, LLC 

(CLE). CLE’s post-secondary program was designed to provide young adults with 

special needs assistance in achieving independence, including tutoring and the 

development of independent living skills. Another participant in the CLE program was 

James Torrey Hill. Matthew,1 who was autistic, was visiting Hill in Hill’s private 

apartment in September 2010 when Hill fatally stabbed him in the back with a kitchen 

knife.

 

1

Since the Finnigan family members have the same surname, we will refer to 

them by their first names for purposes of clarity and not out of disrespect.
2

Matthew’s parents, appellants Timothy and Patricia Finnigan, brought the instant 

wrongful death action against CLE, in which they assert causes of action for negligence, 

breach of written contract, breach of oral contract, intentional misrepresentation, 

negligent misrepresentation, and dependent adult abuse (Welf. & Inst. Code, 

§ 15600 et seq.).2 The trial court granted CLE’s motion for summary judgment on the 

grounds that each cause of action lacked merit as a matter of law. For the reasons stated 

below, we conclude that the trial court did not err and we will affirm the judgment.

II. FACTUAL BACKGROUND

Our factual summary is drawn from the parties’ separate statements of fact and the 

admissible evidence submitted in connection with the motion for summary judgment.

A. Post-High School Background

Matthew had been diagnosed as autistic and was qualified for assistance from the 

Regional Center of the East Bay. When Matthew graduated from high school, his father, 

Timothy, was concerned that Matthew did not have independent living skills. At age 19, 

Matthew moved from the family home to a group home in Pittsburg. He later lived in 

another home in Pittsburg with roommates.

After Matthew was injured in an automobile accident, he received a diagnosis of 

paranoid schizophrenia. He then lived in transitional housing. At some point, Matthew 

attended Diablo Valley College. He also had a job at the Century Theater for about 

18 months.

B. The Agreement for CLE Services

In 2009, when Matthew was 24 years old, he (as the participant) and his father 

(as the sponsor) entered into a one-year agreement for services with CLE. They entered 

in a second one-year agreement for services with CLE for the period of July 1, 2010, to 

 

2 All further statutory references are to the Welfare and Institutions Code unless 

otherwise indicated.
3

July 31, 2011). The second agreement (hereafter, the CLE agreement) was in effect at 

the time of Matthew’s death in September 2010. The Regional Center of the East Bay 

paid Matthew’s fees for the CLE program.

The CLE agreement included the following description of the program: “College 

Living Experience is a non-therapeutic post-secondary support program (the ‘CLE 

Program’) designed to provide assistance to young adults with varying ranges and types 

of special needs to achieve independence. CLE offers a complete network of 

comprehensive services that includes educational support, independent living skills, and 

social skills, as well as support in transitioning into the workforce.”

The CLE agreement also specified the services that CLE would provide “for the 

benefit of Participant: [¶] (i) coordination of educational support and obtaining a 

residence; [¶] (ii) scheduled tutoring in its offices at least two times per week with 

additional sessions to be added per agreement of student and staff. [¶] (iii) development 

of independent living skills, including household maintenance, meal planning and 

preparation, and financial skills, with weekly meetings until proficiency is demonstrated; 

[¶] (iv) a reasonable number of supervised social activities with other Program 

participants scheduled according to the discretion of CLE; and [¶] (v) periodic written 

and/or oral reports detailing the level of independent performance obtained by Participant 

to Participant and/or Sponsor.” As to the services that CLE would not provide, the 

CLE agreement stated: “CLE will not provide therapeutic treatment or 24-hour 

supervision.”

The CLE agreement obligated Matthew, as the participant in the CLE program, to 

“attend and participate in all instructional sessions,” “maintain a habitable and 

presentable home,” and follow his “budget plan and pay all bills as scheduled.” Matthew 

was also obligated to attend school or a vocational regimen, attend work or an internship 

if applicable, and comply with the rules of conduct. In addition, Matthew and his father 

consented to the following: (1) inspection of Matthew’s residence by CLE personnel and 
4

removal of items that violated the rules of conduct; (2) academic, medical, psychological, 

occupational and other testing as recommended by CLE; (3) random drug testing; and 

(4) restriction or termination of Matthew’s use of CLE computers if inappropriate 

websites were accessed.

The waiver and release provision included in the CLE agreement states: 

“Participant and Sponsor acknowledge and agree that there are inherent risks associated 

with an independent living program and with living in a major metropolitan area such as 

Monterey, California. Participant hereby assumes these risks and takes full responsibility 

for his or her own safety and well-being at all times. Participant and Sponsor hereby 

release CLE . . . from any and all losses, claims, damages, expenses, liabilities or 

obligations (other than those expressly included in this Agreement) arising from 

Participant’s participation in the CLE Program whether such loss, claims, damages, 

expenses, liabilities or obligations arise from the negligence of CLE or any of its officers, 

directors, agents, representatives or employees.”

C. Participation in the CLE Program

According to Amy Radochonski, a CLE vice president, CLE serves students who 

have “unique learning needs” and “require additional support to be learning how to live 

on their own or access post-secondary education and career opportunities.” In 2009, the 

criteria for admission to the CLE program in Monterey included submission of an 

application, documentation regarding the student’s disability, and participation in an onsite tour of CLE’s center.

Matthew’s mother, Patricia, believed that Matthew’s participation in the first year 

of the CLE program “had done him some good” because he was happy and confident, 

and had started to keep his home cleaner and have better hygiene. She would not have 

let Matthew go on a CLE-sponsored trip to the Caribbean if she had felt that the CLE 

administrators were incompetent.
5

Hill was another student in CLE’s program in Monterey. Radochonski recalled 

that Hill was admitted to the CLE program with a learning disability. She was not aware 

of any records showing that Hill had a mental health diagnosis. However, CLE staff had 

discussed creating a plan to transition Hill from the CLE program. Hill’s case manager, 

Clare Manning, believed that Hill should not stay in the CLE program because he had 

failed a college class and had “various challenges,” including “a pattern of fabricating or 

lying in a fantastical sort of way” and in his interactions with other CLE students. 

According to Manning, Hill’s interactions with the other students were not physically 

aggressive or violent. However, she recalled two specific interactions that demonstrated 

Hill’s challenges. Hill had taken a photograph of another student without her permission 

and had failed to “stand up for his friend who had his T-shirt torn” by another person 

during a dispute while they were visiting another CLE student’s house.

CLE’s Monterey program director, Rick Picar, stated that the staff discussion 

about transitioning Hill from the CLE program was not based upon any concerns that 

Hill posed a physical threat to other CLE students. Picar did not remember any student 

directly reporting to him anything about Hill. Hill’s CLE tutor in the fall of 2009, 

Nancy Proto-Robinson, did not recall having any problems with Hill. Proto-Robinson 

was concerned about Hill’s struggle with academics at college and his “middle school 

behaviors,” such as writing a female student’s name and telephone number on a college 

wall and shoplifting at Safeway. She also recalled that Hill was excited about “turning 21 

and being able to buy alcohol legally.”

Tony Schellenberger was formerly a resident advisor in CLE’s Monterey program. 

He was instructed to check in on every CLE student at least once a week. As to Hill, 

Schellenberger never saw Hill “hit anybody” or “talk mean to anybody,” or cause 

Schellenberger to be “afraid for another student’s life or another student’s safety with 

[Hill] there. . . .”
6

CLE’s former admissions coordinator, Danielle Rice, remembered having a 

conversation with her superior at CLE in which she stated that Hill’s diagnosis was not a 

good fit for CLE’s program. She had witnessed Hill demonstrating aggressive behavior 

on two occasions when Hill was running around the CLE office “yelling and cussing.” 

Rice was afraid that someone was going to be hurt in the CLE program because “some of 

the students that were being accepted in the program towards the end of the time that 

[she] was working there were not appropriate for the program based on the criteria that 

[she] was provided when [she] started.” However, Rice never witnessed Hill being 

physically aggressive.

Another CLE student, Annamarie Torpey, stated that she had reported to Picar that 

she was worried about Hill because he “would lie all the time, drink a lot of alcohol, 

spread rumors, and say that he wished he was dead.”

On September 22, 2010, Matthew was visiting Hill in Hill’s private apartment in 

the early morning hours when Hill fatally stabbed him.3 Matthew told the police officer 

who responded to Hill’s apartment at 2:15 a.m. that he was playing a video game when 

Hill suddenly stabbed him in the back. Matthew also told the officer that he had known 

Hill for about one and one-half years and they were “friends with benefits” who had sex 

in the past. Before the stabbing, they had been drinking vodka (Matthew said he had 

consumed about one-half of a bottle) and they had not been arguing.

About 10 months before the murder, CLE staff confiscated a hunting knife from 

Hill. Hill’s mother told Manning that Hill’s father had a knife collection, that Hill must 

have gotten the knife from his father, and she did not want it returned to her.

 

3

Plaintiffs do not dispute CLE’s assertion that Hill stabbed Matthew with a 

kitchen knife.
7

III. PROCEDURAL BACKGROUND

A. The Complaint

The record reflects that the currently operative complaint is the second amended 

complaint filed by plaintiffs in March 2013 (hereafter, the complaint). According to the 

allegations in the complaint, defendant CLE was negligent because CLE knew or should 

have known before Hill was admitted to the CLE program that Hill “suffered from severe 

mental illness, [and] had a history of severe emotional disturbance.” Defendants also 

knew or should have known that Hill’s “problems and needs exceeded the parameters of 

the program and the level of training and experience of Defendants and their agents and 

employees. Further, Defendants . . . knew or should have known that Hill constituted a 

danger to other disabled students enrolled in CLE, including [Matthew].”

After Hill was admitted to the CLE program, plaintiffs alleged, defendants knew 

or should have known that Hill bullied other students and enjoyed hurting people and 

animals; possessed knives and other weapons; was not medication compliant; and used 

illicit drug and alcohol. Further, defendants’ employees and/or agents had discussed 

Hill’s “violent erratic behavior, mood swings, severe emotional disturbance and his 

unsuitability for the CLE program” during CLE staff meetings. They also had 

recommended that defendants expel Hill from the CLE program but were told that Hill 

could not be expelled because defendants wanted the income from Hill’s tuition and fees. 

After a female student complained that she was afraid of Hill, defendants promised that 

Hill would attend anger management classes, but he never did so. Defendants’ 

employees or agents allegedly confiscated a hunting knife from Hill two months before 

Matthew’s death.

Plaintiffs further alleged that defendants had failed to supervise the CLE students’ 

social activities and their residence, failed to supervise the CLE students’ medical and/or 

psychological fitness, and failed to monitor the students’ suitability for the CLE program. 

Additionally, defendants had failed to check in on students at night; failed to regularly 
8

inspect their residents and remove items violating the rules of conduct; failed to 

recommend academic, medical, psychological, occupational and other testing; failed to 

conduct random drug testing of students; failed to limit or ban students’ use of CLE 

computers if they accessed inappropriate websites; failed to request and review students’ 

medical and psychiatric records before admission; and failed to expel any student who 

violated CLE’s rules of conduct.

Plaintiffs also alleged that defendants had falsely informed plaintiffs that CLE did 

not accept students with serious psychological issues or criminal records; the safety of 

students was CLE’s top priority; CLE staff were trained and equipped to regularly 

supervise the students and deal with behavioral issues; and students who violated the 

rules of conduct would be expelled.

Plaintiffs claimed that “[a]s a result of the wrongdoing of defendants and their 

agents and employees, and as a result of Defendants’ failure to expel Hill from the [CLE] 

program, Hill murdered [Matthew] on September 22, 2010.”

Based on these and other allegations, plaintiffs asserted causes of action for 

negligence, breach of written contract, breach of oral contract, intentional 

misrepresentation, negligent misrepresentation, and dependent adult abuse 

(§ 15600 et seq.).

B. Motion for Summary Judgment

CLE moved for summary judgment on the grounds that (1) the waiver and release 

clause in the CLE agreement signed by Matthew and Timothy released CLE from 

liability for negligence; (2) CLE did not have a special relationship with Matthew and 

owed no duty to protect him from the unforeseeable criminal conduct of Hill; (3) it was 

unforeseeable to CLE that Hill would murder Matthew, since it was undisputed that Hill 

had not exhibited any violent conduct while he was in the CLE program; (4) plaintiff 

Patricia was not a party to the CLE contract; (5) there was no evidence that CLE had 

breached the CLE contract; (6) the CLE contract contained an integration clause and 
9

therefore the cause of action for breach of oral contract failed; (7) there was no evidence 

that CLE made any misrepresentations to plaintiffs; and (8) Matthew was not a 

dependent adult and there was no evidence of abuse or neglect within the meaning of 

section 15610.07.

C. Opposition to Motion for Summary Judgment

Plaintiffs opposed the motion for summary judgment on several grounds. First, 

they contended that summary judgment could not be granted on the basis of the waiver 

and release provision in the CLE agreement, since the provision was invalid and 

unenforceable. Second, they contended that CLE owed a duty to Matthew either because 

CLE’s misfeasance in “allow[ing] violent, anti-social behavior to flourish in its program” 

made it reasonably foreseeable that an autistic student would become the victim of 

violence by a student such as Hill, or because CLE had a special relationship with 

Matthew.

Regarding each cause of action, plaintiffs argued that either CLE had failed to 

meet its burden on summary adjudication or there were triable issues of material fact. 

Summary adjudication of the cause of action for breach of written contract could not be 

granted, according to plaintiffs, because CLE had submitted no evidence to show that it 

had adhered to the terms of the contract; alternatively, the evidence showed that CLE had 

breached the contract by failing to provide the promised supervised afternoon and 

evening social activities. As to the cause of action for breach of oral contract, plaintiffs 

asserted that the written contract had no force and effect and therefore CLE’s obligations 

were governed by the oral contract.

Similarly, plaintiffs argued that CLE had failed to meet its burden on summary 

adjudication with respect to the causes of action for intentional and negligent 

misrepresentation; alternatively, plaintiffs had presented evidence that CLE made 

numerous false representations and misrepresentations regarding the CLE program.
10

Finally, plaintiffs maintained that summary adjudication of the cause of action for 

dependent adult abuse (§ 15610 et seq.) could not be granted because the evidence 

showed that Matthew qualified as a dependent adult and there were triable questions of 

fact as to whether CLE abused him by “allow[ing] him to be subjected to the 

psychopathic act of another student who was only in the program because of the money 

his presence provided.”

D. Trial Court Order and Judgment

At the hearing on the motion for summary judgment, the trial court sought 

clarification of plaintiffs’ position regarding the issue of foreseeability. Plaintiffs’ 

counsel confirmed that it was their position that it was foreseeable due to Hill’s 

“dangerous behavior” that Hill would murder Matthew, and the murder would not have 

happened if CLE had not admitted Hill or had dismissed Hill from the CLE program.

The trial court filed an amended ruling on December 15, 2014, granting the 

motion for summary judgment. The court determined that CLE had presented competent 

evidence sufficient to sustain a judgment as to all causes of action.

The trial court further found that plaintiffs’ evidentiary showing was insufficient 

to preclude summary judgment, because plaintiffs had “failed to produce counteraffidavits and depositions that set forth relevant evidentiary facts in opposition, within the 

personal knowledge of the declarants, to which the declarants can testify competently if 

called as a witness. Specifically, [plaintiffs] have failed to show foreseeability on the part 

of the Defendant for the third party intervening criminal act that resulted in the death of 

Plaintiffs’ adult son. An essential element of the tort of negligence, and a question of law 

for the Court, is whether a duty is owed by Defendant to the Plaintiffs. [Citation.] . . . 

Here, the evidence produced by the moving party demonstrates that Hill’s murder of 

Finnigan on September 2, 2010, at an apartment privately leased by Hill, was 

unforeseeable by Defendant. Moreover, there is no connection between CLE’s conduct 

in admitting students and performing services as set forth in the contract, and the murder 
11

of Finn[i]gan. Competent evidence shows that employees of Defendant did not observe 

acts of violence by Hill and did [not] receive reports of acts of violence by Hill. The 

evidence demonstrates that Defendant was attempting to transition Hill out of the CLE 

program at the time of the incident for academic failure and immature disruptive 

behavior.”

Further, the court stated: “Plaintiffs have failed to explain how CLE, a program to 

encourage independent living for adults with learning disabilities, could have foreseen 

that participant Hill would murder participant Finnigan in Hill’s privately-leased 

apartment outside of program activity.” The court also stated: “The wrongful conduct 

of Defendant as alleged by Plaintiffs is the failure of Defendant to vet Hill before 

admitting Hill to the program and the failure to expel Hill from the program. Plaintiffs 

have failed to provide competent evidence supporting the argument that expelling Hill 

from the program would have prevented the murder.”

As to causes of action for breach of written and oral contracts, the trial court ruled 

that there were no evidentiary facts to show that the alleged contract breach caused the 

damage of “Plaintiffs’ son’s death by a criminal act.” The causes of action for intentional 

and negligent misrepresentation also lacked merit, the trial court found, because 

“although the Plaintiffs perceived that oral representations concerning 24 hour 

supervision were made; reliance on such a representation conflicts with the fact that the 

participants lived in their own privately obtained housing, and not on a campus.”

Finally, as to the cause of action for dependent adult abuse, the trial court 

determined that its finding of insufficient facts to show negligence showed that this cause 

of action also failed. The trial court did not rule on CLE’s contention that the action was 

barred by the waiver and release provision in the CLE agreement.

Judgment in CLE’s favor was entered in February 2015. The Plaintiffs filed a 

timely notice of appeal from the judgment.
12

IV. DISCUSSION

On appeal, plaintiffs generally contend that the summary judgment should be 

reversed because the trial court erred by improperly shifting the burden of proof to 

plaintiffs and failing to recognize plaintiffs’ evidence in opposition to the motion for 

summary judgment. Alternatively, plaintiffs contend that the summary judgment should 

be reversed because the trial court failed to rule on their objections to CLE’s evidence.

We will begin our evaluation with the standard of review for an order granting 

summary judgment.

A. The Standard of Review

The standard of review for an order granting a motion for summary judgment is 

de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The 

trial court’s stated reasons for granting summary judgment are not binding on the 

reviewing court, “which reviews the trial court’s ruling, not its rationale. [Citation.]” 

(Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.)

In performing our independent review, we apply the same three-step process as 

the trial court. “Because summary judgment is defined by the material allegations in the 

pleadings, we first look to the pleadings to identify the elements of the causes of action 

for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159 

(Baptist).)

“We then examine the moving party’s motion, including the evidence offered in 

support of the motion.” (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving 

for summary judgment has the initial burden of showing that a cause of action lacks merit 

because one or more elements of the cause of action cannot be established or there is a 

complete defense to that cause of action. (Code of Civ. Proc., § 437c, subd. (o); Aguilar, 

supra, 25 Cal.4th at p. 850.)

If the defendant fails to make this initial showing, it is unnecessary to examine the 

plaintiff’s opposing evidence and the motion must be denied. However, if the moving 
13

papers make a prima facie showing that justifies a judgment in the defendant’s favor, the 

burden shifts to the plaintiff to make a prima facie showing of the existence of a triable 

issue of material fact. (Code of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 

Cal.4th at p. 849.)

In determining whether the parties have met their respective burdens, “the court 

must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn 

therefrom [citation], and must view such evidence [citations] and such inferences 

[citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th 

at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would 

allow a reasonable trier of fact to find the underlying fact in favor of the party opposing

the motion in accordance with the applicable standard of proof.” (Id. at p. 850, 

fn. omitted.) “Thus, a party ‘cannot avoid summary judgment by asserting facts based on 

mere speculation and conjecture, but instead must produce admissible evidence raising a 

triable issue of fact. [Citation.]’ [Citation.]” (Dollinger DeAnza Associates v. Chicago 

Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 (Dollinger DeAnza).)

Keeping the standard of review in mind, we will independently determine whether 

the motion for summary judgment should have been granted. In performing our review, 

we are also mindful that “[a]lthough our review of a summary judgment is de novo, it is 

limited to issues which have been adequately raised and supported in plaintiffs’ brief.

[Citations.]” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466.)

B. Negligence

In the negligence cause of action, plaintiffs alleged that CLE had a duty to 

exercise reasonable care to prevent harm to Matthew due to their special relationship, and 

that CLE breached its duty by (1) admitting Hill to the CLE program when they knew or 

should have known he suffered from severe mental illness and had a history of violent 

actions; (2) knew or should have known that Hill had violated CLE’s rules of conduct 

and constituted a physical danger to other CLE students; (3) knew or should have known 
14

that Hill should be expelled from the CLE program; and (4) CLE’s wrongful conduct was 

the proximate cause of Matthew’s death.

To determine whether summary adjudication of the cause of action for negligence 

was properly granted, we first review the rules governing a cause of action for negligence 

arising from third party criminal conduct.

1. Liability for Third Party Criminal Conduct

“[I]n order to prevail in a negligence action, plaintiffs must show that defendants 

owed them a legal duty, that defendants breached that duty, and that the breach 

proximately caused their injuries. [Citation.]” (Wiener v. Southcoast Childcare Centers, 

Inc. (2004) 32 Cal.4th 1138, 1145 (Wiener).)

Accordingly, “[d]uty ‘is an essential element’ of the tort of negligence. 

[Citation.]” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529 (Melton).) “Under 

traditional tort law principles, a person is not ordinarily liable for the actions of another 

and is under no duty to protect another person from harm. [Citation.]” (Kockelman v. 

Segal (1998) 61 Cal.App.4th 491, 498 (Kockelman).)

Thus, “there is no duty to act to protect others from the conduct of third parties. 

[Citations.]” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, fn. omitted 

(Delgado).) In other words, “ ‘one “who has not created a peril is not liable in tort 

merely for failure to take affirmative action to assist or protect another” from the acts of 

a third party.’ [Citations.]” (Melton, supra, 183 Cal.App.4th at p. 531.)

One exception to the general no-duty rule stated in Delgado is the “ ‘special 

relationship’ doctrine.” (Delgado, supra, 36 Cal.4th at p. 235.) “A defendant may owe 

an affirmative duty to protect another from the conduct of third parties if he or she has a 

‘special relationship’ with the other person. [Citations.]” (Ibid.) This court has observed 

that “[s]uch a special relationship is typically where the plaintiff is particularly vulnerable 

and dependent upon the defendant who, correspondingly, has some control over the 

plaintiff’s welfare. [Citation.]” (Kockelman, supra, 61 Cal.App.4th at p. 499; see also 
15

Melton, supra, 183 Cal.App.4th at p. 535 [a special relationship generally involves some 

kind of dependency or reliance].)

“The existence of a special relationship, however, is only the beginning of the 

analysis. [Citations.]” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 152 

(Margaret W.).) The California Supreme Court has recognized that “a duty to take 

affirmative action to control the wrongful acts of a third party will be imposed only 

where such conduct can be reasonably anticipated. [Citations.]” (Ann M. v. Pacific 

Plaza Shopping Center (1993) 6 Cal.4th 666, 676 (Ann M.), disapproved on another 

ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5 (Reid).) “Thus, even 

when a defendant has formed a special relationship with a plaintiff, courts uniformly hold 

that the defendant has no duty to protect the plaintiff from unforeseeable third party 

criminal conduct. [Citations.]” (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 

388, 396 (J.L.).)

In the context of premises liability, “in cases involving liability for third party 

criminal conduct, ‘the requisite degree of foreseeability rarely, if ever, can be proven in 

the absence of prior similar incidents.’ [Citations.]” (Melton, supra, 183 Cal.App.4th at 

pp. 537-538, quoting Ann M., supra, 6 Cal.4th at p. 679.) Thus, where a minor was 

assaulted by another teenage invitee in the adult defendants’ home, the defendants were 

not liable in the absence of any evidence that they had “actual knowledge of the 

assaultive propensities of the teenage assailant.” (Romero v. Superior Court (2001) 89 

Cal.App.4th 1068, 1081 (Romero).) The California Supreme Court has stated that “some 

types of crime might be foreseeable without prior similar incidents, so that a simple 

security measure might deter a particular act, or foreseeability might be shown by the 

occurrence of similar nonidentical events.” (Wiener, supra, 32 Cal.4th at pp. 1150-1151.)

Our Supreme Court further stated in Wiener “that our cases analyze third party 

criminal acts differently from ordinary negligence, and require us to apply a heightened

sense of foreseeability before we can hold a defendant liable for the criminal acts of third 
16

parties. [Citation.] There are two reasons for this: first, it is difficult if not impossible in 

today’s society to predict when a criminal might strike. Also, if a criminal decides on a 

particular goal or victim, it is extremely difficult to remove his every means for achieving 

that goal.” (Wiener, supra, 32 Cal.4th at pp. 1149-1150.)

Accordingly, “foreseeability is the crucial factor.” (Margaret W., supra, 139 

Cal.App.4th at p. 156.) “[N]o matter whether a heightened or lesser degree of 

foreseeability was required and no matter whether the actual crime committed or only 

similar conduct needed to be foreseen—foreseeability must be measured by what the 

defendant actually knew.” (Ibid.; see also J.L., supra, 177 Cal.App.4th at p. 397 [same].)

Finally, the foreseeability of third party criminal conduct, “when analyzed to 

determine the existence or scope of a duty, is a question of law to be decided by the court. 

[Citations.]” (Ann M., supra, 6 Cal.4th at p. 678.)

2. Duty Analysis

In the present case, there is a dispute as to whether CLE had a special relationship 

with Matthew. For purposes of our analysis, we will assume, without deciding, that such 

a special relationship existed due to Matthew’s participation in the CLE program. We 

therefore turn to an analysis of whether CLE had a duty of care to protect Matthew from 

Hill’s criminal conduct because Hill’s murder of Matthew was foreseeable under the

heightened standard of foreseeability that applies to liability for third party criminal 

conduct. (See Wiener, supra, 32 Cal.4th at pp. 1149-1150; Melton, supra, 183 

Cal.App.4th at pp. 537-538.)

On appeal, we understand plaintiffs to argue that summary adjudication of the 

cause of action for negligence was improperly granted because there are triable issues of 

fact as to whether Hill’s murder of Matthew was foreseeable. According to plaintiffs, 

“[w]as it, for example, unforeseeable that Hill would harm another student when the staff 

at CLE were telling the directors that they were afraid Torrey Hill ‘could hurt them or 

hurt someone in the program’? [Citation.] Was it unforeseeable when the court itself 
17

admitted that defendant CLE was trying to transition him out of the program for acts of 

disruptive behavior? [Citation.] [¶] Could there be no foreseeability when Hill was 

threatening other students? [Citation.] When Hill was himself announcing that he liked 

to hurt other people?”

In response, CLE argues that the trial court properly determined that CLE’s 

evidence demonstrated that Hill’s criminal act was unforeseeable to CLE and that 

plaintiffs failed to provide competent evidence showing the foreseeability of the act. 

We agree.

In moving for summary adjudication, CLE presented evidence showing that CLE 

staff had no knowledge of any prior similar incidents of criminal conduct by Hill 

(Wiener, supra, 32 Cal.4th at p. 1150-1151) and no knowledge that Hill had “assaultive 

propensities” (Romero, supra, 89 Cal.App.4th at p. 1081). It is undisputed that CLE staff 

were in discussions to transition Hill from the CLE program in Monterey due to Hill’s 

academic failure and, as the trial court described it, his “immature disruptive behavior.” 

CLE staff had not witnessed any prior acts of violence by Hill or any prior acts of 

physical aggression, and none had been reported to CLE staff. In short, CLE had no duty 

to protect Matthew by refusing to accept Hill into the CLE program or by expelling Hill 

from the program in the absence of any actual knowledge from which CLE could 

reasonably anticipate that Hill would murder another student. (See Ann M., supra, 6 

Cal.4th at p. 676.) Accordingly, CLE’s showing was sufficient to show as a matter of 

law that CLE was not liable because plaintiffs could not establish the duty element of the 

cause of action for negligence.

Plaintiffs’ evidence in opposition to summary adjudication of the cause of action 

for negligence is insufficient to create a triable issue of material fact regarding 

foreseeability because the evidence they rely upon is inadmissible. We reiterate one of 

the important rules governing summary adjudication: A party “ ‘cannot avoid summary 

judgment by asserting facts based on mere speculation and conjecture, but instead must 
18

produce admissible evidence raising a triable issue of fact. [Citation.]’ [Citation.]” 

(Dollinger DeAnza, supra, 199 Cal.App.4th at pp. 1144-1145.)

Moreover, “[t]he same rules of evidence that apply at trial also apply to the 

declarations submitted in support of and in opposition to motions for summary judgment. 

Declarations must show the declarant’s personal knowledge and competency to testify, 

state facts and not just conclusions, and not include inadmissible hearsay or opinion. 

(Code Civ. Proc., § 437c, subd. (d)[4]; [citation].) The declarations in support of a motion 

for summary judgment should be strictly construed, while the opposing declarations 

should be liberally construed. [Citation.] This does not mean that courts may relax the 

rules of evidence in determining the admissibility of an opposing declaration. Only 

admissible evidence is liberally construed in deciding whether there is a triable issue.” 

(Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 (Bozzi).) The same rules of 

admissibility apply to deposition testimony submitted in opposition to a motion for 

summary judgment. (See Evid. Code, § 702 [except for expert testimony, “the testimony 

of a witness concerning a particular matter is inadmissible unless” the witness “has 

personal knowledge of the matter”].)

Plaintiffs argue on appeal that their evidence in opposition to the motion for 

summary adjudication shows that there are triable issues of fact regarding the 

foreseeability of Hill’s murder of Matthew. They rely on the deposition testimony of 

Rice, the former admissions coordinator for CLE. Rice testified that Manning, a CLE 

case manager and psychologist, had reviewed Hill’s file and discussed during a staff 

 

4 Code of Civil Procedure section 437c, subdivision (d) provides: “Supporting and 

opposing affidavits or declarations shall be made by a person on personal knowledge, 

shall set forth admissible evidence, and shall show affirmatively that the affiant is 

competent to testify to the matters stated in the affidavits or declarations. An objection 

based on the failure to comply with the requirements of this subdivision, if not made at 

the hearing, shall be deemed waived.”
19

meeting that Hill was not a good fit for the program because the “red flags” related to 

“aggressive behaviors and violence and some issues with law enforcement or probation.” 

The record does not show that Rice had personal knowledge of the contents of Hill’s file, 

nor does the record contain any further information about Hill’s unspecified prior 

“aggressive behaviors and violence.”

Rice also stated in her deposition testimony that staff at CLE had told CLE’s 

directors that they were afraid that Hill would harm another student or staff, that Hill had 

threatened other students, and he had announced that he liked to hurt people. However, 

as CLE stated in its evidentiary objections to Rice’s deposition testimony, Rice admitted 

that she did not have any personal knowledge of Hill being involved in violence or in 

physical or verbal altercations. Rice testified: “The only incident I’ve ever seen was 

[Hill] throwing that angry tantrum in the hallway and him just saying statements like ‘I’m 

violent. I like to hurt people.’ But any violence and actual physical or verbal altercations 

are all from other staff members bringing it up for concerns during staff meetings. [¶] . . . 

[¶] Like I said, my interactions with him were fine.” Absent personal knowledge, Rice’s 

deposition testimony is insufficient to show that CLE had knowledge that Hill had 

committed prior similar acts of violence or had assaultive propensities, such that Hill’s 

murder of Matthew was reasonably foreseeable. (See Bozzi, supra, 186 Cal.App.4th at 

p. 761; Melton, supra, 183 Cal.App.4th at p. 536.)

Plaintiffs also rely on the deposition testimony of Wendy Byrnes, a former 

CLE employee and parent of a CLE participant, as evidence that Hill had bullied other 

students and had to room by himself. Byrnes’ testimony was not based on personal 

knowledge and did not provide evidence of prior similar incidents or a propensity for 

assault that was known to CLE, since Byrnes testified that she was told by CLE’s 

academic advisor that Hill had stolen another student’s mail and food and was bullying 

the student by calling him names. Her testimony is therefore insufficient to create a 

triable issue of material of fact regarding the foreseeability of Matthew’s murder.
20

Plaintiffs’ reliance on the testimony of another CLE parent, Carolyn Zaworski, is 

also insufficient to create a triable issue of material fact regarding foreseeability. 

Zaworski testified that Hill was her son’s roommate and in September 2009 she had 

talked with Manning and “expressed [her] concern about the roommate situation and 

that . . . [she] was concerned about [Hill’s] anger.” Zaworski did not testify that she told 

Manning or any other CLE staff about any specific incidents or conduct involving Hill.

Plaintiffs also point to the evidence that CLE staff found a hunting knife that 

belonged to Hill, but this evidence is insufficient to create a triable issue of material fact 

because plaintiffs do not dispute defendants’ contention that the hunting knife was 

confiscated from Hill about 10 months before Matthew’s murder and was not used in the 

murder.

We therefore determine as a matter of law that CLE owed no duty to protect 

Matthew from Hill’s criminal conduct because Hill’s murder of Matthew was not 

foreseeable under the heightened standard of foreseeability that applies to third party 

criminal conduct. (See Wiener, supra, 32 Cal.4th at pp. 1149-1150; Ann M., supra, 6 

Cal.4th at pp. 676-679.) Since plaintiffs cannot establish the duty element of their 

negligence cause of action, we also determine that summary adjudication was properly 

granted.

3. Causation Analysis

Even assuming that there is a triable issue of material fact regarding whether 

Matthew’s murder by Hill was foreseeable and therefore CLE breached its duty to expel 

Hill, we would find that plaintiffs cannot establish the causation element of the cause of 

action for negligence. (See Wiener, supra, 32 Cal.4th at p. 1145 [plaintiffs must show 

that defendant’s breach of duty proximately caused their injuries].)

The California Supreme Court has stated that proximate cause is “sometimes 

referred to as ‘but for’ causation. [Citation.]” (State Dept. of State Hospitals v. Superior 

Court (2015) 61 Cal.4th 339, 354, fn. omitted (State).) “[T]he purpose of the ‘but for’ 
21

requirement is to safeguard against speculative and conjectural claims.” (Id. at p. 356.) 

“ ‘Ordinarily, proximate cause is a question of fact which cannot be decided as a matter 

of law from the allegations of a complaint. . . . Nevertheless, where the facts are such 

that the only reasonable conclusion is an absence of causation, the question is one of law, 

not of fact.’ [Citations.]” (Id. at p. 353.)

In State, our Supreme Court determined that the State Department of Mental 

Health’s alleged breach of a mandatory duty to use two evaluators to determine whether 

a person should be committed as a sexually violent predator was not, as a matter of law, 

the proximate cause of the victim’s murder and rape by a convicted rapist who was 

deemed suitable for release on parole by one evaluator. (State, supra, 61 Cal.4th at 

pp. 356-357.) The court ruled that the “failure to appoint a second evaluator cannot 

properly be considered a proximate cause of [the rapist’s] heinous crime.” (Id. at 

pp. 356-357.) “As a matter of cause in fact it is conjectural. . . .” (Id. at p. 357.)

The present case is similarly speculative. The record reflects that the murder 

occurred when Matthew was visiting Hill in Hill’s private apartment in the early morning 

hours. Matthew told the police officer who responded to Hill’s apartment at 2:15 a.m. 

that he was playing a video game when Hill suddenly stabbed him in the back. Matthew 

also told the officer that he had known Hill for about one and one-half years and they 

were “friends with benefits” who had sex in the past. Before the stabbing, they had been 

drinking vodka.

At the time of the murder, Matthew and Hill therefore had a social relationship 

that undisputedly took place, as the trial court found, outside of CLE program activities 

and outside CLE premises. On these facts, the only reasonable conclusion is the absence 

of causation, since it is speculative to claim that if CLE had expelled Hill from the 

CLE program, the social relationship would have immediately ended, Matthew would 

not have been present in Hill’s apartment, and Hill would not have stabbed him. (State, 

supra, 61 Cal.4th at p. 353.)
22

We therefore determine that even assuming that there are triable issues of material 

fact regarding the foreseeability of Matthew’s murder by Hill, as a matter of law 

plaintiffs cannot establish the causation element of the cause of action for negligence.

C. Breach of Written Contract

In the cause of action for breach of written contract, plaintiffs alleged that Timothy 

and Matthew had entered into a written contract with CLE that CLE breached by “failing 

to ‘supervise afternoon and evening social activities,’ and failing to supervise and 

monitor students’ residences, computer usage and medical and/or psychological fitness or 

suitability for program participation.” Plaintiffs further alleged that CLE’s breach of the 

written contract was the proximate cause of Matthew’s death.

On appeal, plaintiffs contend that the trial court erred in granting summary 

adjudication of the breach of written contract cause of action because CLE failed to 

provide evidence showing that CLE did not breach the contract or that plaintiffs lacked 

evidence of a breach of contract.

CLE responds that the trial court properly granted summary adjudication on the 

ground that the record lacks any evidentiary facts to show that the CLE agreement was 

breached or that the alleged breach of contract was the cause of Matthew’s death by a 

criminal act. As we will explain, we find the causation issue to be dispositive.

“[T]he elements of a cause of action for breach of contract are (1) the existence of 

the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s 

breach, and (4) the resulting damages to the plaintiff. [Citation.]” (Oasis West Realty, 

LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “Causation of damages in contract cases, 

as in tort cases, requires that the damages be proximately caused by the defendant’s 

breach, and that their causal occurrence be at least reasonably certain. (Civ. Code, 

§§ 3300, 3301.)” (Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 233

(Vu).) As we have noted, proximate cause is “sometimes referred to as ‘but for’ 
23

causation.” (State, supra, 61 Cal.4th at p. 354.) “[T]he purpose of the ‘but for’ 

requirement is to safeguard against speculative and conjectural claims.” (Id. at p. 356.)

In the present case, even assuming that the evidence shows, as plaintiffs allege, 

that CLE breached the written agreement by “failing to ‘supervise afternoon and evening 

social activities,’ and failing to supervise and monitor students’ residences, computer 

usage and medical and/or psychological fitness or suitability for program participation,” 

no triable issue of material fact is created regarding causation. Based on such evidence, 

we may only speculate that absent CLE’s alleged breaches of contractual obligations to 

generally supervise and monitor the students, the murder would not have occurred in the 

early morning hours when Matthew and Hill were socializing in Hill’s private apartment. 

(See State, supra, 61 Cal.4th at p 356.) Therefore, “ ‘the only reasonable conclusion is an 

absence of causation.’ ” (Id. at p. 353.)

Moreover, there is nothing in the record to suggest that CLE had a contractual 

obligation to constantly monitor the CLE students’ private apartments and medical and/or 

psychological fitness. Similar to the decision in Crow v. State of California (1990) 222 

Cal.App.3d 192, 209 (Crow), which involved an assault on a college student during a 

dormitory party, CLE “could ‘not have prevented this incident from taking place except 

possibly by posting guards in [Hill’s apartment] on a 24-hour, 365-day per year basis.’ ”

We therefore determine as a matter of law that plaintiffs cannot establish that 

CLE’s alleged breaches of the written CLE agreement were the proximate cause of 

Matthew’s death. (See State, supra, 61 Cal.4th at p. 353.) Since the cause of action for 

breach of written contract therefore lacks merit, we determine that summary adjudication 

was properly granted. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at 

p. 850.)

D. Breach of Oral and/or Implied Contract

In their cause of action for breach of oral and/or implied contract, plaintiffs alleged 

that CLE made oral and/or implied promises subsequent to the execution of the written 
24

CLE agreement, including a promise to terminate any student who violated the CLE rules 

of conduct by violating laws, using illegal substances, possessing weapons, engaging in 

conduct likely to endanger other students, being rude or abusive to CLE staff or students, 

and consuming or selling alcohol or mind-altering substances.

Plaintiffs further alleged that CLE did not comply with these oral and/or implied 

promises because CLE failed “to terminate promptly CLE student Hill upon observing 

and learning of his violations of the CLE rules of conduct. . . .” They asserted that CLE’s 

breach of the oral and/or implied contract was the cause of Matthew’s death.

Plaintiffs argue on appeal that their cause of action for breach of oral or implied 

contract is not barred by the integration clause in the written CLE agreement,5since the 

written agreement is vague and uncertain and Patricia was not a party to it.

CLE disagrees, relying on the integration clause in the written CLE agreement as a 

bar to the claimed oral or implied contract, and asserting that Patricia testified that she is 

suing only on the 2009 and 2010 written CLE agreements.

The trial court ruled that there were no evidentiary facts to show that the alleged 

contract breach caused the damage of “[p]laintiffs’ son’s death by a criminal act.” We 

agree. “The elements of a breach of oral contract claim are the same as those for a breach 

of written contract: a contract; its performance or excuse for nonperformance; breach; 

and damages. [Citations.]” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 

437, 453.) As we have emphasized, “[c]ausation of damages in contract cases . . .

requires that the damages be proximately caused by the defendant’s breach, and that their 

 

5

Paragraph 11 of the CLE agreement states: “This Agreement, including the 

attached schedules, contains the entire understanding of the parties with respect to the 

matters set forth herein, merging and superseding all prior and contemporaneous 

agreements and understandings between the parties with respect to such matters. This 

Agreement may be amended only by a written instrument executed by all parties.”
25

causal occurrence be at least reasonably certain. (Civ. Code, §§ 3300, 3301.)” (Vu, 

supra, 58 Cal.App.4th at p. 233.)

Having determined as a matter of law that plaintiffs cannot establish that the 

claimed breaches of the written CLE agreement caused Matthew’s death, we reach a 

similar conclusion regarding the claim that CLE breached an oral or implied promise to 

terminate any student who violated the CLE rules of conduct. Even assuming the 

existence of an oral or implied contract as plaintiffs allege, the only reasonable 

conclusion is that the claimed breach of the oral or implied contract was not the 

proximate cause of Hill’s murder of Matthew. As we have discussed, on the facts of this 

case it is speculative or conjectural to claim that but for CLE’s failure to expel Hill for 

violating the rules of conduct, Hill would not have murdered Matthew. Speculation and 

conjecture are not sufficient to establish proximate cause. (State, supra, 61 Cal.4th at 

p. 356.)

Accordingly, we determine as a matter of law that plaintiffs cannot establish that 

CLE’s alleged breach of an oral or implied contract was the proximate cause of 

Matthew’s death. (See State, supra, 61 Cal.4th at p. 353.) Since the causation element 

of the cause of action for breach of oral or implied contract cannot be established, we 

determine that summary adjudication was properly granted. (See Code Civ. Proc.,

§ 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.)

E. Intentional and Negligent Misrepresentation

In the causes of action for intentional and negligent misrepresentation, plaintiffs 

alleged that they relied on CLE’s misrepresentations to enroll Matthew in the CLE 

program and to maintain his enrollment. The alleged misrepresentations included the 

following: CLE would review prospective students’ medical records; no student with 

serious psychological issues would be admitted; CLE’s staff had the requisite licensing, 

training, and experience; the safety and security of CLE students was CLE’s top priority; 

“CLE is a 24 hour monitoring program;” students were not allowed to have alcohol in 
26

their apartment or possess weapons; students who violated the rules of conduct or were 

violent would be expelled; resident advisors would make frequent visits to students’ 

residences; and students would meet with their advisors, tutors, and mentors weekly.

Plaintiffs contend on appeal that the trial court erred in granting summary 

adjudication of the intentional and negligent misrepresentation causes of action because 

Rice, the former CLE admissions coordinator, testified in her deposition that CLE 

misrepresented the program’s social activities, including telling prospective parents, 

erroneously, that CLE held social activity meetings every night. They also contend that 

CLE induced them to send Matthew to the CLE program by representing that CLE was a 

safe program for people with autism, there was 24-hour supervision of students, and 

students would be paired with roommates based on their level of functioning.

In response, CLE emphasizes that Rice did not testify that she told Timothy that 

there were social activities every night, and Timothy testified that he knew that CLE did 

not provide 24-hour supervision.

Having reviewed the evidence, we determine that there is no evidence to support 

the allegations that Rice or any other CLE representative told plaintiffs that there would 

be 24-hour supervision of CLE students and nightly social activities. Rice testified in her 

deposition that she “was supposed to notify parents . . . that there was 24-hour 

supervision for students.” She did not testify that she actually told plaintiffs that 

Matthew would have 24-hour supervision. Similarly, although Rice testified that she was 

instructed to tell parents that CLE students would be paired as roommates with students 

of “like disability,” there is no evidence that Rice told that to plaintiffs or that Matthew 

and Hill were roommates.

Moreover, Timothy testified in his deposition that he had read the CLE agreement 

and understood that CLE did not provide 24-hour supervision. Timothy also testified that 

no one from CLE told him that CLE would make sure that the students were in their 

apartments by 10:00 p.m., and he did not think that Matthew would be supervised by 
27

CLE when he visited a friend in an apartment. Timothy also testified that he was told 

that Matthew would be supervised by CLE staff at dinner functions and outings.

Even assuming, however, that there are triable issues of material fact regarding the 

alleged misrepresentations, we would again find the causation issue to be dispositive. As 

we will explain, we determine that the trial court properly ruled that, with regard to the 

misrepresentation causes of action, that there were no evidentiary facts to show that the 

alleged misrepresentations caused “[p]laintiffs’ son’s death by a criminal act.”

Both the cause of action for intentional misrepresentation and negligent 

misrepresentation have a causation element. The elements of a cause of action for 

intentional misrepresentation are “(1) a misrepresentation, (2) knowledge of falsity, 

(3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. 

[Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) The

elements of a cause of action for negligent misrepresentation are the same, “except that 

it does not require knowledge of falsity but instead requires a misrepresentation of fact 

by a person who has no reasonable grounds for believing it to be true. [Citations.]” (Id. 

at p. 231.)

Thus, “damage causation is an essential element of any cause of action for fraud 

or negligent misrepresentation.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 

202.) This court has stated that “[i]n order to recover for fraud, as in any other tort, the 

plaintiff must plead and prove the ‘detriment proximately caused’ by the defendant’s 

tortious conduct. (Civ. Code, § 3333.) Deception without resulting loss is not actionable 

fraud. [Citation.]” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 

1807, 1818.)

In this case, even if CLE had misrepresented that CLE provided 24-hour 

supervision for CLE students and held social activities every night, and the plaintiffs had 

relied upon this intentional or negligent misrepresentation in enrolling Matthew in the 

CLE program, “ ‘the only reasonable conclusion is an absence of causation.’ ” (State, 
28

supra, 61 Cal.4th at p. 353.) We reiterate that as in Crow, supra, 222 Cal.App.3d at 

page 209, CLE “could ‘not have prevented this incident from taking place except possibly 

by posting guards in [Hill’s apartment] on a 24-hour, 365-day per year basis.’ ” In other 

words, a jury could not reasonably conclude that but for CLE’s intentional or negligent 

misrepresentation regarding 24-hour supervision and nightly social activities, Hill would 

not have murdered Matthew in the early morning hours when they were socializing in 

Hill’s private apartment. (See Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 

1083.)

We therefore determine as a matter of law that plaintiffs cannot establish the 

causation element of the causes of action for intentional and negligent misrepresentation. 

(See State, supra, 61 Cal.4th at p. 353.) Therefore, the trial court did not err in granting 

summary adjudication.

F. Dependent Adult Abuse

In their cause of action for dependent adult abuse, plaintiffs alleged that Matthew 

was a dependent adult within the meaning of section 15610.23 and that “[t]he conduct of 

Defendants caused [Matthew] and Plaintiffs to allow [Matthew] to remain as a CLE 

disabled student, which ultimately lead to [Matthew’s] death at the hands of Hill.” More 

specifically, plaintiffs alleged that CLE “knew or should have known that Hill constituted 

a serious danger to CLE students including [Matthew], but intentionally hid this 

knowledge from [Matthew] and Plaintiffs in order to continue to receive tuition payments 

from Hill and Plaintiffs.”

According to plaintiffs, the trial court erred in granting summary adjudication of 

the dependent adult abuse cause of action because there is a factual dispute as to whether 

Matthew was a dependent adult. Plaintiffs also contend that the trial court erred in ruling 

that the cause of action failed due to insufficient facts to show that CLE was negligent.
29

CLE asserts that the trial court properly granted summary adjudication of the 

dependent adult cause of action because, even assuming that Matthew was a dependent 

adult, there was no evidence that CLE was his caretaker or that CLE had abused him.

Section 15610.23, subdivision (a) defines a dependent adult as “any person 

between the ages of 18 and 64 years who resides in this state and who has physical or 

mental limitations that restrict his or her ability to carry out normal activities or to protect 

his or her rights, including, but not limited to, persons who have physical or 

developmental disabilities. . . .” For purposes of our analysis, we will assume, without 

deciding, that Matthew was a dependent adult within the meaning of the statute.

“ ‘Abuse of an elder or a dependent adult’ means either of the following: [¶] 

(1) Physical abuse,[6]neglect,[7]financial abuse, abandonment, isolation, abduction, or 

 

6

Section 15610.63 provides: “ ‘Physical abuse’ means any of the following: [¶] 

(a) Assault, as defined in Section 240 of the Penal Code. [¶] (b) Battery, as defined in 

Section 242 of the Penal Code. [¶] (c) Assault with a deadly weapon or force likely to 

produce great bodily injury, as defined in Section 245 of the Penal Code. [¶] 

(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or 

water. [¶] (e) Sexual assault, that means any of the following: [¶] (1) Sexual battery, as 

defined in Section 243.4 of the Penal Code. [¶] (2) Rape, as defined in Section 261 of 

the Penal Code. [¶] (3) Rape in concert, as described in Section 264.1 of the Penal Code. 

[¶] (4) Spousal rape, as defined in Section 262 of the Penal Code. [¶] (5) Incest, as 

defined in Section 285 of the Penal Code. [¶] (6) Sodomy, as defined in Section 286 of 

the Penal Code. [¶] (7) Oral copulation, as defined in Section 288a of the Penal Code. 

[¶] (8) Sexual penetration, as defined in Section 289 of the Penal Code. [¶] (9) Lewd or 

lascivious acts as defined in paragraph (2) of subdivision (b) of Section 288 of the Penal 

Code. [¶] (f) Use of a physical or chemical restraint or psychotropic medication under 

any of the following conditions: [¶] (1) For punishment. [¶] (2) For a period beyond 

that for which the medication was ordered pursuant to the instructions of a physician and 

surgeon licensed in the State of California, who is providing medical care to the elder or 

dependent adult at the time the instructions are given. [¶] (3) For any purpose not 

authorized by the physician and surgeon.”

7

Section 15610.57 provides: “ (a) ‘Neglect’ means either of the following: [¶] 

(1) The negligent failure of any person having the care or custody of an elder or a 

dependent adult to exercise that degree of care that a reasonable person in a like position 

(continued) 
30

other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The 

deprivation by a care custodian of goods or services that are necessary to avoid physical 

harm or mental suffering.” (§15610.07.)

We begin our analysis by observing that plaintiffs have not claimed that CLE 

committed dependent adult abuse by physically abusing Matthew, or by committing 

financial abuse, abandonment, isolation, abduction, or “other treatment” within the 

meaning of section 15610.07. We therefore construe plaintiffs’ argument as follows: 

Summary adjudication was improperly granted because the evidence shows that CLE 

committed neglect of Matthew, a dependent adult, by concealing Hill’s dangerousness 

from Matthew and plaintiffs.

Section 15610.57, subdivision (a)(1) provides the statutory definition of neglect: 

“ ‘Neglect’ means . . . [t]he negligent failure of any person having the care or custody of 

an elder or a dependent adult to exercise that degree of care that a reasonable person in 

a like position would exercise.” (Italics added.) The statutory definition of “neglect

refers . . . to the ‘failure of those responsible for attending to the basic needs and comforts 

of elderly or dependent adults, regardless of their professional standing, to carry out their 

custodial obligations.’ [Citation.]” (Covenant Care, Inc. v. Superior Court (2004) 32 

Cal.4th 771, 783.)

 

would exercise. [¶] (2) The negligent failure of an elder or dependent adult to exercise 

that degree of self care that a reasonable person in a like position would exercise. [¶] 

(b) Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist 

in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to 

provide medical care for physical and mental health needs. No person shall be deemed 

neglected or abused for the sole reason that he or she voluntarily relies on treatment by 

spiritual means through prayer alone in lieu of medical treatment. [¶] (3) Failure to 

protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or 

dehydration. [¶] (5) Failure of an elder or dependent adult to satisfy the needs specified 

in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive 

functioning, mental limitation, substance abuse, or chronic poor health.”
31

We determine that even assuming, without deciding, that CLE had the care or 

custody of Matthew within the meaning of section 15610.57, subdivision (a)(1), the trial 

court correctly ruled that plaintiffs could not establish that CLE was negligent and 

therefore the cause of action for dependent elder abuse fails as a matter of law. As we 

have previously determined, plaintiffs cannot establish that CLE was negligent because, 

as a matter of law, CLE owed no duty to protect Matthew from Hill’s criminal conduct 

because Hill’s murder of Matthew was not foreseeable under the heightened standard of 

foreseeability that applies to third party criminal conduct. (See Wiener, supra, 32 Cal.4th 

at pp. 1149-1150; Ann M., supra, 6 Cal.4th at pp. 676-679.)

For these reasons, we conclude that summary adjudication of the cause of action 

for dependent elder abuse was properly granted.

G. Evidentiary Issue

Plaintiffs’ final argument is that the summary judgment should be reversed 

because the trial court failed to rule on their objections to CLE’s evidence in support of 

its motion for summary judgment. They maintain that “if this Court does not overturn the 

grant of summary judgment and remand the case with instruction to enter a denial of the 

motion, then it should require the trial court to do what it was required to do in the first 

place and rule on plaintiffs’ evidentiary objections before it considers the appropriateness 

of summary judgment.”

CLE agrees that the trial court did not rule on the parties’ evidentiary objections. 

However, relying on the California Supreme Court’s decision in Reid, supra, 50 Cal.4th 

512, CLE contends that the trial court’s failure to rule on evidentiary objections is not a 

ground for reversal of summary judgment.

Our review of the record shows that although the trial court did not make express 

rulings on each of the parties’ evidentiary objections, the court indicated its rulings on 
32

those evidentiary objections “pertinent to the disposition of the summary judgment 

motion.” (Reid, supra, 50 Cal.4th at p. 532.)8 In its amended ruling granting CLE’s 

motion for summary judgment, the trial court stated: “The Court finds that Defendant 

and moving party have presented competent evidence sufficient to sustain a judgment as 

to all causes of action. The evidence includes deposition testimony of plaintiff Timothy 

Finnegan, Clare Manning, a case manager and psychologist, Rick Picard, the director of 

CLE, Nancy Proto-Robertson, Hill’s tutor, and the written contract signed by the 

parties. . . .” The trial court also ruled that “[t]he Plaintiffs and responding parties have 

failed to produce counter-affidavits and depositions that set forth relevant evidentiary 

facts in opposition, within the personal knowledge of the declarants, to which the 

declarants can testify competently if called as a witness.”

Moreover, we have addressed the evidentiary objections that we found pertinent to 

our independent review of the merits of CLE’s summary judgment motion, in particular 

CLE’s objections to the declaration of Rice, the former admissions coordinator for CLE. 

Therefore, as stated in Reid, “no purpose would be served in returning this matter to the 

trial court to re-review objections already considered by the Court of Appeal.” (Reid, 

supra, 50 Cal.4th at p. 535.)

We therefore find no merit in plaintiffs’ contention that the summary judgment 

should be reversed and the matter remanded for the trial court to rule on the parties’ 

evidentiary objections.

V. DISPOSITION

The judgment is affirmed.

 

8 Code of Civil Procedure section 437c, subdivision (q) currently states: “In 

granting or denying a motion for summary judgment or summary adjudication, the court 

need rule only on those objections to evidence that it deems material to its disposition of 

the motion. Objections to evidence that are not ruled on for purposes of the motion shall 

be preserved for appellate review.”
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.