Lubke v. Automobile Club of S. Cal., No. B302782 (D2d7 Jan 6, 2021)
Plaintiff alleges that the Automobile Club of Southern California was negligent when it failed to send a tow truck he had summoned, leading to his being hit by a car while standing on the shoulder of a freeway. The Club moved for summary judgment, arguing that Plaintiff’s junky responses to written discovery established that he couldn’t show causation. In opposition, Plaintiff argued and submitted some evidence to the contrary.
The trial court assumed that Plaintiff could fix the discovery to create a fact issue. But it granted summary judgment anyway, finding that Plaintiff could not establish that he and the Club had the kind of special relationship that would give rise to a duty that could be breached by non-feasance. Although Plaintiff argued at the hearing that such a duty could be found or implied in the his contract with the Club, the court rejected that argument because, for among other reasons, the contract wasn’t in the record.
That was error, both procedural and substantive. Procedurally, the trial court should not have reached out and granted summary judgment on some issue not raised in the moving papers. That’s not prohibited per se, but before doing so, the court needed to give Plaintiff notice and an opportunity to respond, including with evidence. Failing to due so is a due process violation.
And as to substance, the law, as reflected in the Restatement of Torts, does recognize that a duty of care can arise from non-feasance when an actor undertakes contractually to render services to another. The scope of that duty will depends on, among other things, the terms of the parties’ contract. So by deciding the issue without letting Plaintiff submit the contract, the trial court potentially deprived plaintiff of a meritorious argument.
Reversed.
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