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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BRETT LUEBKE,

Plaintiff and Appellant,

v.

AUTOMO BILE 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. J udgment in favor

of the Auto mobile Club of Southern California is reversed.

J udgment 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 & Ki rkpatrick, Cheryl A. Kirkpatrick;

Horton, Oberrecht, Kirkpatrick & Martha, Cheryl A. Kir k patric k

and Peter C.L. Chen for Defendant and Respondent

.

______________________

B rett Luebke sued t he Automobile Club of Southern
California (Auto Club) and Brent

- Ai r 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 response s that the Auto Club did not cause “ the
Incident,” the Auto C l ub 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 a ssistance. On appeal Luebke argues the court erred in
granting summary judgment b ased on an issue not presented in

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

of the Auto Club

. However, b ecause Luebke does not address

Brent

- Air on appe al, 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 Ski rball 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 contact ed the Auto Club.

Luebke filed a n 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 f

or 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,

Lu ebke substituted Brent

- Air for Doe 1.
The Auto Club answered the complaint on June 19, 2018
with a general denial, asserting 14 affirmative defenses. Brent

Air answered the complaint on July 23, 2018 with a general
denial, asserting 22 affirmative defense s.

2. Luebke’s Discovery Responses

In response to form interrogator y 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 Aut o Club’s request for

admission N o. 6, “Admit that Automobile Club of Southern4

California did not cause the INCIDENT.” 1 In res ponse 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 for m 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 su mmary 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

identifi cation 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

. L uebke 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 “ ‘ INC I DENT’ includes th e 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 tr uck. By 7:00 p.m., when no tow truck had
arrived to help him, Luebke again called the Auto Club. He was

told the t o w 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 o pposition 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 provi d ing 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 brie fly 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 o f those in the vehicle and to
exercise his authority in a manner that d id 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 cau se 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 hi s answer to fo rm interrogatory N o. 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 expl ained 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 d eclaration of his attorney Mauro Fiore, Jr.) a copy of his amended response to request fo r admission N o. 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 ineffect ive because any
such change required leave of court following a noticed motion

. I n 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 o f briefing on the motion for summary judgment

— Luebke moved for leave to

amend h is res ponse to request for admission N o. 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 conduc t 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 c ould
not prove causation as a matter of law, the Auto Club and Brent

Air addressed Luebke’s discussion of Lugtu

, supra , 26 Cal.4th
703. In that case, they explained, the CHP officer had directed a driver stop ped 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 (nonfeasa nce)

, but

that the officer’s alleged misconduct amounted to malfeasance,
creating a serious risk of harm to the plaintiff s to which t he y
would not otherwise have be en exposed. ( Id. at pp. 716

- 717.)
Nonfeasance, which is at issue in this case, the Auto Cl ub and

Brent

- Air argued, is largely limited to cases in which a special
relationship c an be established. Yet Luebke “has not alleged a
special relationship, nor provided evidence o f 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 rulin g 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

respo nses, 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 Plaintif f
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 cause d the damage. The court finessed th ose 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 ru led, “[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 situat ion 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

- and

run 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 Miki a lian held such an omission
is nonfeasance, and ‘a defendant “can be held liable for these
negligent omissions only if a speci al 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 created9

simply because a person responds to a c all 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 crea ted 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 re medi es. 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 f act 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 t o this code.10

there is a complete de fense 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 mus t 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 actio n. (

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 plaint iff “ to show that a triable issue

of one or more material facts exists as to the cause of ac tion 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 fa vorable to the
nonmoving party ( Regents of University of California v. Superior

Court (2018) 4 Cal.5th 607, 61 8 )

, 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. T he 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 inj ury.”’” ( 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 base d solely on the

argument Luebke had admitted it was not the cause of his
injuries

— an argument the trial cou rt 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. (20 16) 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 fa cts 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 regardin g Brent

- Air ’s role

i n 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 movi ng 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 Lug tu

, 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 justif ied a grant of summary judgment

absent identification of undisputed material fact s 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 ” ’” ];

P arkview Villas Assn., Inc. v. State Farm Fire & Casualty Co.
(2005) 133 Cal.App.4th 1197, 1214 [th e undisputed material f act s 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) E ach cause of action, claim for13

d amages, 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 t he 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

authorize d 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 th at law to an
undisputed material fact put in issue by the parties’ separate

statements wa s dispositive of a cause of action presented by the
pleadings. ( Id. at p. 62.) 6

5 The Auto Club couple d 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 argue d 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 discussi on 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 o f the trial court that it was recognizing, the Juge court stated, “[S]ection 437c requires the party seeking summary14 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, alleg ing as undisputed
material facts that plaintiff ha d 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 tri al 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 par ty ’ 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 th e 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, ev en 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 fa ct is undisputed and entitles

the moving party to judgment as a matter of law. [¶] T o 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 specifica lly 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

mat erial 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 , it s analysis of the requirements for summary judgment mandates16

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 nonfe asance, Luebke must establish a
special relationship existed between him and th e 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. 6 19 ; 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 ”].) A fter seeing the court’s tentative ruling to
grant the motion on duty, n ot 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, n oting 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 w ould lead to

tort remedies was contrary to California law.

The trial court misunderstood the law , as wel l as its
obligations in ruling on a motion for summary judgment . A17

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 n eed 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 i nitial 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

volu nteer’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.)

Bu t, 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 pro tection of another who discontinued those services was subject to liability only if the other was left in a18

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 ha rm 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

C l ub, 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 tha t 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 th e 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 Re gents of University of California v. Superior Court

, supra , 4 Cal.5th at p ages 6 20 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, n one of those

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

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

between Luebke and the Auto Club was not in the recor d. 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, t he trial

court deprived Luebke of his right to oppose summary judgment.

Its ruling cannot stand.

DISPOSITION

The judgment in favor of the Auto Clu b 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 th e California Constitution.