Filed 12/17/20 Luebke v. Automobile Club of Southern Cal. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BRETT LUEBKE,

Plaintiff and Appellant,

v.

AUTOMOBILE CLUB OF 

SOUTHERN CALIFORNIA,

Defendant and Respondent.

 B302782

 (Los Angeles County

 Super. Ct. No. BC663628)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Laura A. Seigle, Judge. Judgment in favor 

of the Automobile Club of Southern California is reversed. 

Judgment in favor of Brent-Air Towing, Inc. is affirmed. 

Law Offices of Mauro Fiore, Jr., Mauro Fiore, Jr., Gilbert 

Perez III and Lisa J. Jackson for Plaintiff and Appellant. 
2

Horton, Oberrecht & Kirkpatrick, Cheryl A. Kirkpatrick; 

Horton, Oberrecht, Kirkpatrick & Martha, Cheryl A. Kirkpatrick

and Peter C.L. Chen for Defendant and Respondent.

______________________

Brett Luebke sued the Automobile Club of Southern 

California (Auto Club) and Brent-Air Towing, Inc. for negligence 

after he was struck by another vehicle while waiting in his 

disabled car on the shoulder of a freeway for a response to his call 

for roadside assistance. Following Luebke’s admission in 

discovery responses that the Auto Club did not cause “the

Incident,” the Auto Club and Brent-Air moved for summary 

judgment on the issue of causation. Granting the motion, the 

trial court assumed, without deciding, that Luebke could amend 

his discovery responses to state the Auto Club’s delay in 

responding to his call was a substantial factor in causing his 

injuries, but nonetheless held, as a matter of law, no special 

relationship existed between the Auto Club and Luebke and, 

therefore, the Auto Club had no duty under tort law to provide 

any assistance. On appeal Luebke argues the court erred in 

granting summary judgment based on an issue not presented in 

the moving papers. We agree and reverse the judgment in favor 

of the Auto Club. However, because Luebke does not address 

Brent-Air on appeal, we affirm the judgment in its favor. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Pleadings

In the early evening of June 4, 2015 Tong Yin, an 

unlicensed driver, lost control of his vehicle and ran onto the 

shoulder of northbound Interstate 405 near Skirball Center 

Drive, where his vehicle struck the rear of Luebke’s car. Luebke, 
3

who had coasted to the shoulder of the freeway after his engine 

died, had been waiting inside his car for more than two hours for 

roadside assistance after he had contacted the Auto Club. 

Luebke filed an unverified Judicial Council form complaint 

on June 1, 2017, alleging a single cause of action for negligence 

against the Auto Club, Yin and 25 Doe defendants. The 

attachment to the complaint alleged, “Defendants negligently, 

carelessly and recklessly failed to respond to a roadside 

assistance call. Plaintiff put in a roadside assistance call to 

defendant. Defendant’s driver did not respond to the call in a 

timely fashion and allowed plaintiff to sit on the freeway 

shoulder for an unreasonable amount of time and therefore 

plaintiff’s vehicle was then struck by another vehicle. As a result 

plaintiff sustained property damage and physical injuries as 

alleged herein.” 

In an amendment to the complaint filed June 11, 2018, 

Luebke substituted Brent-Air for Doe 1.

The Auto Club answered the complaint on June 19, 2018 

with a general denial, asserting 14 affirmative defenses. BrentAir answered the complaint on July 23, 2018 with a general 

denial, asserting 22 affirmative defenses. 

2. Luebke’s Discovery Responses

In response to form interrogatory 14.1 from the Auto Club 

and Brent-Air asking whether Luebke contended anyone involved 

in the incident had violated any statute, ordinance or regulation 

and that violation was “a legal (proximate) cause” of the incident, 

Luebke stated, “Tony [sic] Yin violated Vehicle Code 

Section 22017.” Luebke admitted the Auto Club’s request for 

admission No. 6, “Admit that Automobile Club of Southern 
4

California did not cause the INCIDENT.”1 In response to 

interrogatories directing Luebke to provide all facts supporting 

his contention the Auto Club’s negligence had caused his injuries, 

Luebke simply repeated the general statement describing the 

event that he had provided in the attachment to his form 

complaint. 

In February 2019 the Auto Club and Brent-Air served 

supplemental discovery requests. Luebke confirmed his prior 

responses remained accurate and complete.

3. The Summary Judgment Motion and Opposition

The Auto Club and Brent-Air moved for summary 

judgment on April 18, 2019, arguing summary judgment was 

warranted because Luebke could not prove causation as a matter 

of law. The motion emphasized Luebke’s discovery responses: his 

admission the Auto Club had not caused the incident, his 

identification of only Yin in the interrogatory asking for all of 

those who had violated a statute and were the proximate cause of 

his injuries, and the absence of any specific facts to support his 

contention regarding the Auto Club’s and Brent-Air’s negligence. 

In his opposition to the motion and supporting materials, 

filed July 30, 2019, Luebke described the events leading to his 

injuries. Luebke called the Auto Club at approximately 5:30 p.m. 

as he sat parked in his car on the shoulder of the freeway. He 

was told a tow truck would be there within 30 to 45 minutes. A 

short while later an employee from the Department of 

Transportation stopped at Luebke’s car and asked if he needed a 

1 The Auto Club’s requests for admission defined 

“INCIDENT” as “‘INCIDENT’ includes the circumstances and 

events surrounding the alleged accident, injury, or other 

occurrence giving rise to this action or proceeding.” 
5

ride to get gas. Luebke responded that he was waiting for an 

Auto Club tow truck. By 7:00 p.m., when no tow truck had 

arrived to help him, Luebke again called the Auto Club. He was 

told the tow truck had cancelled and a different one would need 

to be contacted. At approximately 7:30 p.m. Yin’s vehicle struck 

Luebke’s.

Luebke’s opposition memorandum explained the premise of 

his complaint against the Auto Club and Brent-Air, which 

Luebke identified as the tow truck company that had cancelled. 

Luebke asserted the Auto Club and Brent-Air owed him a duty to 

exercise due care in providing reasonably safe roadside 

assistance and had breached that duty by placing him in a 

situation in which he was exposed to an unreasonable risk of 

harm through the reasonably foreseeable conduct of third-party 

drivers, such as Yin. Luebke cited and briefly discussed Lugtu v. 

California Highway Patrol (2001) 26 Cal.4th 703 (Lugtu), which 

held a California Highway Patrol (CHP) officer, in directing a 

traffic violator to stop in a particular location, had a legal duty to 

use reasonable care for the safety of those in the vehicle and to 

exercise his authority in a manner that did not expose them to an 

unreasonable risk of harm. The Supreme Court also held the 

negligence of the other driver, who struck the stopped vehicle, did 

not constitute a superseding cause as a matter of law. (Id. at 

pp. 725-726.) Luebke argued his injuries, like those at issue in 

Lugtu, were caused by the combined negligence of Yin and the 

Auto Club: “Each was a substantial factor in causing Plaintiff’s 

injuries.” 

Luebke insisted his answer to form interrogatory No. 14.1 

that Yin was the proximate cause of his injuries did not relieve 

the Auto Club of its concurrent responsibility for the accident. 
6

He also contended the word “incident” in the discovery demands 

was ambiguous and explained he and his attorney had 

interpreted it in both the form interrogatories and the requests 

for admission “to be the ‘incident’ that occurred when Tong Yin 

drove his vehicle into the shoulder of the northbound I-405 

freeway and collided with the back of Plaintiff’s vehicle.” The 

opposition continued, “Based on Plaintiff’s interpretation of 

‘incident,’ Plaintiff’s admission to RFA No. 6 that the Auto Club 

did not cause [Tong Yin’s] incident, does not mean the Auto Club 

was not a substantial factor in the cause of Plaintiff’s damages. 

These are two different statements with two different meanings.” 

(Italics omitted.) Luebke attached to his opposition papers (as 

exhibit 4 to the declaration of his attorney Mauro Fiore, Jr.) a 

copy of his amended response to request for admission No. 6, 

dated July 24, 2019, which changed “Admit” to “Deny.” 

In their reply memorandum the Auto Club and Brent-Air

first argued Luebke’s attempt to withdraw his admission that the 

Auto Club did not cause the incident was ineffective because any 

such change required leave of court following a noticed motion. 

In any event, they asserted, his belated argument the definition 

of “incident” in the Judicial Council’s form discovery documents 

was ambiguous lacked merit.2 After repeating their primary 

2 On August 28, 2019—after the completion of briefing on the 

motion for summary judgment—Luebke moved for leave to 

amend his response to request for admission No. 6. In support of 

the motion Luebke’s lawyers explained, as they had in their 

papers in opposition to summary judgment, that they believed 

the word “incident” in the request for admission referred only to 

the conduct of Tong Yin, not to the conduct of all three 

tortfeasors, which would have included the Auto Club and Brent-
7

argument that Luebke’s discovery responses established he could 

not prove causation as a matter of law, the Auto Club and BrentAir addressed Luebke’s discussion of Lugtu, supra, 26 Cal.4th 

703. In that case, they explained, the CHP officer had directed a

driver stopped for speeding to the center median area of the 

highway rather than the right shoulder. The Supreme Court 

held the theory of liability was not that the officer was liable 

because he failed to come to the driver’s aid (nonfeasance), but 

that the officer’s alleged misconduct amounted to malfeasance, 

creating a serious risk of harm to the plaintiffs to which they

would not otherwise have been exposed. (Id. at pp. 716-717.) 

Nonfeasance, which is at issue in this case, the Auto Club and 

Brent-Air argued, is largely limited to cases in which a special 

relationship can be established. Yet Luebke “has not alleged a 

special relationship, nor provided evidence of any such 

relationship.” Even if he could, they concluded, he still could not 

overcome his admission that any act or omission by the Auto 

Club or Brent-Air that amounted to negligent conduct did not 

constitute a substantial factor in causing the incident. 

4. The Trial Court’s Ruling

The trial court posted a tentative ruling online, heard oral 

argument on September 11, 2019 and took the matter under 

submission. Later that day the court granted the motion. 

As to Brent-Air the court explained, “Plaintiff does not 

name Brent-Air in the complaint, the original discovery 

responses, the amended discovery responses, or the excerpts from 

Plaintiff’s deposition attached to [Luebke’s opposition to the 

motion]. Plaintiff mentions in passing in his opposition brief that 

Air. The hearing on Luebke’s motion was taken off calendar after 

the court granted the motion for summary judgment.
8

Brent-Air was the tow truck company that cancelled, but Plaintiff 

submits no evidence supporting that assertion. Accordingly, the 

original and amended discovery responses establish Brent-Air 

had no role in the incident.” 

As for the Auto Club, the court initially noted the parties 

had directed most of their briefing to whether Luebke’s discovery 

responses had admitted the Auto Club did not cause his damages 

and whether he could amend his responses to state the Auto Club 

had caused the damage. The court finessed those issues: “For 

the purposes of deciding this motion, the Court assumes (without 

deciding in any way) that Plaintiff has the ability to amend its 

discovery responses as set forth in Exhibit 4 to the Fiore 

Declaration.” 

Notwithstanding this assumed concession to Luebke’s 

position on causation, the court ruled, “[B]ased on the facts set 

forth in the amended discovery response, Plaintiff cannot 

establish Auto Club’s liability as a matter of law.” The court 

explained Luebke’s theory of liability was predicated on the Auto 

Club’s nonfeasance, unlike the situation in Lugtu, supra, 

26 Cal.4th 703. Citing Mikialian v. City of Los Angeles (1978) 

79 Cal.App.3d 150, which held the plaintiff, struck by a hit-andrun driver while working on a car on the side of the road, did not

have a viable negligence claim against law enforcement officers 

who had failed to place flares on the road for his protection, the

trial court stated, “The court in Mikialian held such an omission 

is nonfeasance, and ‘a defendant “can be held liable for these 

negligent omissions only if a special relationship then obtained 

between him and plaintiff.’” [Citation.] Plaintiff does not 

contend any special relationship existed between himself and 

Auto Club, nor could he. A special relationship is not created 
9

simply because a person responds to a call for assistance. 

[Citation.] There is no legal basis to conclude that Plaintiff’s 

calling Auto Club and Auto Club’s responding triggered a special 

relationship.” 

Responding to Luebke’s argument at the hearing that a 

special relationship had been created by his contract with the 

Auto Club, the court commented that the contract was not in the 

record, but, in any event, Luebke “did not have any legal 

authority supporting the argument that a contract creates a 

special relationship such that the breach of a contract can lead to 

tort remedies. The law is actually to the contrary.” “Absent 

intentional conduct intended to harm Plaintiff,” the court 

concluded, “the alleged contractual relationship between Auto 

Club and Plaintiff did not give rise to a special relationship or 

tort remedies under California law.” 

Judgment was entered in favor of both the Auto Club and 

Brent-Air. Luebke filed a timely notice of appeal. Although 

Luebke identified Brent-Air as a respondent in his notice of 

appeal and civil case information statement, he does not 

challenge the ruling in its favor on appeal.

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only 

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

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

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

subd. (c).)3 A defendant may bring a motion on the ground the 

plaintiff cannot prove one of the required elements of the case or

3 Statutory references are to this code.
10

there is a complete defense to the action. (§ 437c, 

subds. (o)(1), (2) & (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 

25 Cal.4th 826, 849.) 

To carry its initial burden when the motion is directed to 

the plaintiff’s case rather than an affirmative defense, a 

defendant must present evidence that either “conclusively

negate[s] an element of the plaintiff’s cause of action” or “show[s]

that the plaintiff does not possess, and cannot reasonably obtain,”

evidence necessary to establish at least one element of the cause

of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at

pp. 853-854.) Only after the defendant carries that initial burden

does the burden shift to the plaintiff “to show that a triable issue

of one or more material facts exists as to the cause of action or a

defense thereto.” (§ 437c, subd. (p)(2).)

We review a grant of summary judgment de novo and, 

viewing the evidence in the light most favorable to the 

nonmoving party (Regents of University of California v. Superior 

Court (2018) 4 Cal.5th 607, 618), decide independently whether 

the facts not subject to triable dispute warrant judgment for the 

moving party as a matter of law. (Hampton v. County of 

San Diego (2015) 62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. 

(2009) 47 Cal.4th 610, 618.)

2. The Trial Court Improperly Decided the Issue of Duty

To prevail on a cause of action for negligence, a plaintiff 

must establish “‘“a legal duty to use due care, a breach of such 

legal duty, and the breach as the proximate or legal cause of the 

resulting injury.”’” (Vasilenko v. Grace Family Church (2017) 

3 Cal.5th 1077, 1083; accord, Beacon Residential Community

Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 

573; see Regents of University of California v. Superior Court,
11

supra, 4 Cal.5th at p. 618 [“Rosen’s negligence suit required her 

to prove duty, breach, causation, and damages”].) The Auto 

Club’s motion for summary judgment was based solely on the 

argument Luebke had admitted it was not the cause of his 

injuries—an argument the trial court rejected based on its 

assumption for purposes of deciding the motion that Luebke 

could his amend his earlier discovery responses.4 Having rejected 

the sole ground on which the Auto Club moved for summary 

judgment, the trial court should have denied the motion. 

(See Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235,

255 [“[w]here a remedy as drastic as summary judgment is 

involved, due process requires a party be fully advised of the 

issues to be addressed and be given adequate notice of what facts 

it must rebut in order to prevail”]; San Diego Watercrafts, Inc. v.

Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [same]; see

also § 437c, subd. (g) [an order granting summary judgment

4 The Auto Club’s contention the trial court granted its 

motion based on Luebke’s inability to prove causation, as well as 

the absence of any duty, wholly mischaracterizes the court’s 

ruling. As discussed, after assuming Luebke could amend his 

discovery responses, the court stated, “Those amended responses 

do not create an issue of disputed material fact preventing a 

grant of summary judgment.” The court then described the 

absence of any allegations or evidence regarding Brent-Air’s role 

in the incident, justifying granting the motion as to it. As for the 

Auto Club, the court continued, based on the facts set forth in the 

amended discovery responses, Luebke could not establish his 

contract with the Auto Club created a special relationship with 

the company and, accordingly, the Auto Club’s alleged 

nonfeasance breached no duty owed to Luebke. The discussion 

after the court stated there were no disputed issues of fact 

concerned duty, not causation.
12

“shall specifically refer to the evidence proffered [by the moving

party] in support of . . . the motion that indicates no triable issue

exists”].)

The Auto Club’s efforts to justify the trial court’s ruling

based on an issue it had not raised fail. First, it argues Luebke

tendered the issue of duty by discussing Lugtu, supra, 26 Cal.4th 

703 in his opposition memorandum. Accordingly, the Auto Club 

insists, Luebke cannot claim lack of notice or a due process 

violation when the trial court accepted his invitation to consider 

the question of duty in ruling on its motion. 

Luebke’s eight-line discussion of Lugtu, however, was 

limited to explaining his position that he had a viable cause of 

action for negligence against both Yin, the driver who struck 

Luebke’s car (the immediate cause of the accident), and the Auto 

Club, based on each defendant’s breach of duty and the causal 

link of those breaches to his injuries. Nothing about that brief 

analysis, directed to the question of causation, relieved the Auto 

Club of its obligation to provide notice of any issue that would be

presented by its motion or justified a grant of summary judgment 

absent identification of undisputed material facts related to those 

issues in the Auto Club’s separate statement. (See City of

Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, 

fn. 4 [“‘“[t]his is the Golden Rule of Summary Adjudication: if it is 

not set forth in the separate statement, it does not exist”’”];

Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co.

(2005) 133 Cal.App.4th 1197, 1214 [the undisputed material facts

must appear in the separate statement or be disregarded]; see 

also Cal. Rules of Court, rule 3.1350(d)(1) [“The Separate 

Statement of Undisputed Material Facts in support of a motion 

must separately identify: [¶] (A) Each cause of action, claim for
13

damages, issue of duty, or affirmative defense that is the subject

of the motion; and [¶] (B) Each supporting material fact claimed 

to be without dispute with respect to the cause of action, claim for 

damages, issue of duty, or affirmative defense that is the subject 

of the motion”].)5

Second, citing Juge v. County of Sacramento (1993) 

12 Cal.App.4th 59 (Juge), the Auto Club contends California law 

authorized the trial court to grant summary judgment on the 

issue of duty even though it was not addressed in its motion or 

separate statement. As the Auto Club indicates, the court of 

appeal in Juge held a trial court has discretion to grant a motion 

for summary judgment on a ground identified by the trial court 

rather than the moving party if application of that law to an 

undisputed material fact put in issue by the parties’ separate 

statements was dispositive of a cause of action presented by the 

pleadings. (Id. at p. 62.)6 

5 The Auto Club coupled its contention that Luebke had 

injected the issue of duty into the summary judgment 

proceedings with the equally specious assertion Luebke’s

opposition memorandum did not discuss the issue of causation.

That claim is refuted not only by examining the memorandum, 

which argued there are triable issues of fact that the Auto Club 

and Brent-Air were a substantial factor in the cause of Luebke’s 

damages when Luebke’s discovery responses are properly 

understood, but also by reading the trial court’s ruling, which 

began its discussion by observing the parties’ briefs discussed at 

length whether Luebke’s discovery responses admitted the 

defendants had not caused his damages and whether he could 

amend those responses. 

6 Emphasizing the entirely discretionary nature of the 

authority of the trial court that it was recognizing, the Juge court 

stated, “[S]ection 437c requires the party seeking summary 
14

In Juge the plaintiff alleged he had been seriously injured 

when he lost control of his bicycle and crashed into another 

cyclist while rounding a curve on the county’s negligently 

designed bicycle trail. The county moved for summary judgment 

based on the affirmative defense of design immunity and another, 

similar ground, but not lack of causation, alleging as undisputed 

material facts that plaintiff had been moving at a speed less than 

13 miles per hour at the time of the accident and that the curve 

was safely designed for that speed. The plaintiff failed to dispute 

these facts. The trial court granted summary judgment, ruling 

the county had negated causation, an essential element of the 

plaintiff’s cause of action. (Juge, supra, 12 Cal.App.4th at pp. 62-

63.)

Affirming the judgment the court of appeal reasoned, 

“Although the moving party’s contention that the action has no

merit or there is no defense thereto frames the issues for

consideration in a summary judgment motion, it is the

specification of an undisputed fact as material which, when

judgment to state with specificity in its moving papers each of the 

grounds of law upon which the moving party is relying in 

contending the action has no merit or there is no defense to the 

action. If the parties’ separate statements of material facts and 

evidence in support thereof include an undisputed material fact 

which is dispositive of the action, but the moving party has 

overlooked the legal significance of that fact and has neglected to 

cite the applicable ground of law as a basis for summary 

judgment, the trial court need not address the issue. The court 

may deny the motion even if the court recognizes the legal 

significance of the undisputed material fact and knows it would 

entitle the party to summary judgment if the issue had been 

explicitly raised in the moving papers.” (Juge, supra, 

12 Cal.App.4th at p. 68.)
15

coupled with the pleadings, establishes the legal significance of

the undisputed material fact. [Citation.] Thus, even though the

moving party has overlooked the legal significance of a material

fact, its existence is nonetheless fatal to the cause of action or

defense thereto when the material fact is undisputed and entitles

the moving party to judgment as a matter of law. [¶] To require 

the trial court to close its eyes to an unmeritorious claim simply 

because the operative ground entitling the moving party to 

summary judgment was not specifically tendered by that party 

would elevate form over substance and would be inconsistent 

with the purpose of the summary judgment statute.” (Juge, 

supra, 12 Cal.App.4th at p. 69.)

The Juge court, however, added an important prerequisite 

to the trial court’s right to exercise that authority: “[W]hen the 

court does so, due process of law requires that the party opposing 

the motion must be provided an opportunity to respond to the 

ground of law identified by the court and must be given a chance 

to show there is a triable issue of fact material to said ground of 

law.” (Juge, supra, 12 Cal.App.4th at p. 70.) That requirement 

was satisfied in the case before it, the court of appeal concluded, 

because the plaintiff had not denied in his opposition papers the 

material facts set forth by the county that justified the ruling in 

its favor on the issue of causation and at the hearing on the 

motion, after being advised the court was inclined to grant 

summary judgment on that issue, the plaintiff had declined the 

court’s invitation to request a continuance in order to supplement 

the record with evidence that contradicted the county’s showing. 

(Id. at pp. 72-72.)

Whatever we may think of the ultimate holding in Juge, its 

analysis of the requirements for summary judgment mandates
16

reversal here: Unlike the county in Juge, the Auto Club’s 

separate statement did not set forth undisputed material facts, 

uncontested by Luebke, that entitled it to judgment as a matter 

of law on the issue of duty. And unlike the trial court in Juge, 

the court in this case did not suggest a continuance or otherwise 

provide an opportunity for Luebke to submit evidence on that 

previously undisclosed issue. 

As the trial court recognized, for purposes of a negligence 

cause of action based on nonfeasance, Luebke must establish a 

special relationship existed between him and the Auto Club

creating a duty to act, which the Auto Club breached: “‘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 relationship between them which gives rise to a duty to

act.’” (Regents of University of California v. Superior Court, 

supra, 4 Cal.5th at p. 619; see Rest.3d Torts, Liability for 

Physical and Emotional Harm, § 40, subd. (a) [“[a]n actor in a 

special relationship with another owes the other a duty of 

reasonable care with regard to risks that arise within the scope of 

the relationship”].) After seeing the court’s tentative ruling to 

grant the motion on duty, not causation, Luebke attempted to 

explain at the hearing such a special relationship had been

created by his contract with the Auto Club and his reliance on the 

services it promised to provide in a timely fashion. The trial 

court rejected that argument, noting the contract was not in the 

record and, in any event, Luebke’s contention a contract could 

create a special relationship such that its breach would lead to 

tort remedies was contrary to California law. 

The trial court misunderstood the law, as well as its 

obligations in ruling on a motion for summary judgment. A
17

special relationship may, in fact, arise out of a contractual duty. 

(See Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 

1177; Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 

1193, 1203.) “‘“The rule which imposes this duty is of universal

application as to all persons who by contract undertake

professional or other business engagements requiring the

exercise of care, skill and knowledge; the obligation is implied by

law and need not be stated in the agreement.”’” (Jackson, at

p. 1177.) 

Commonly referred to as the negligent undertaking

doctrine, this aspect of the law of duty has traditionally been

discussed in the context of a volunteer (a “Good Samaritan”) who, 

having no initial duty to do so, undertakes to provide protective 

services to another. In those circumstances the volunteer “will be 

found to have a duty to exercise due care in the performance of 

that undertaking if one of two conditions is met: either (a) the 

volunteer’s failure to exercise such care increases the risk of 

harm to the other person, or (b) the other person reasonably 

relies upon the volunteer’s undertaking and suffers injury as a 

result.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249.) 

But, as explained by Division Eight of this court in Mukthar v.

Latin American Security Service (2006) 139 Cal.App.4th 284, 289-

290, the doctrine may apply whether the actor undertook to 

provide the services “gratuitously or for consideration.”7 As now 

7

 “Liability for negligently conducting a gratuitous 

undertaking has a history that dates back to the early 18th 

century. Section 323 of the Restatement of Torts addressed the 

liability of Good Samaritans. Section 323 required only that the 

actor employ skills actually possessed. A person acting 

gratuitously for the protection of another who discontinued those 

services was subject to liability only if the other was left in a 
18

set forth in Restatement Third of Torts, Liability for Physical and 

Emotional Harm, section 42, Duty Based on Undertaking, “An

actor who undertakes to render services to another and who

knows or should know that the services will reduce the risk of

physical harm to the other has a duty of reasonable care to the

other in conducting the undertaking if: [¶] (a) the failure to

exercise such care increases the risk of harm beyond that which

existed without the undertaking, or [¶] (b) the person to whom

the services are rendered or another relies on the actor's

exercising reasonable care in the undertaking.”

8

Whether a special relationship existed between Luebke and

the Auto Club and whether the Auto Club had a duty of

reasonable care in providing its services depend in substantial

part on the terms of the contract between Luebke and the Auto

Club, as well as whether there was evidence Luebke reasonably

relied on the Auto Club to fulfill its contractual obligations and

whether the Auto Club failed to do so in a way that increased

worse position than if the aid had not been provided. Section 323 

did not predicate the duty on reliance or an increase in risk. 

Section 325 of the first Restatement imposed an affirmative duty 

based on a promise to engage in an undertaking but required 

reasonable reliance. [¶] The Second Restatement of Torts 

substantially expanded the scope of § 323 beyond Good 

Samaritans by including persons who act pursuant to a contract.” 

(Rest.3d Torts, Liability for Physical and Emotional Harm, § 42, 

com. a.)

8 The Supreme Court in Regents of University of California v. 

Superior Court, supra, 4 Cal.5th at pages 620 through 621 cited 

extensively to the rules regarding special relationships contained

in Restatement Third of Torts, Liability for Physical and 

Emotional Harm, section 40 et seq.
19

Luebke’s risk of harm. Far from being undisputed, none of those

material facts was even addressed in the Auto Club’s separate

statement. Indeed, as the trial court emphasized, the contract

between Luebke and the Auto Club was not in the record. Of

course not. The contract had nothing to do with the question of

causation identified by the Auto Club’s motion and its separate

statement, nor did the reasonableness of Luebke’s reliance on the

Auto Club to timely provide roadside assistance.

By reaching out to decide an issue not addressed in the

Auto Club’s moving papers as required by section 437c, the trial

court deprived Luebke of his right to oppose summary judgment. 

Its ruling cannot stand.

DISPOSITION

The judgment in favor of the Auto Club is reversed. The 

judgment in favor of Brent-Air is affirmed. Luebke is to recover 

his costs on appeal.

PERLUSS, P. J.

We concur:

FEUER, J. RICHARDSON, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.