Cassandra Leigh Triplett vs. Sammie's Friends Animal Shelter, et al.

Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

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 an affirmative defense to that cause of action. Code Civ. Proc. § 437c, subd. (o)(1), (2); Aguilar, 25 Cal. 4th at 850. As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. Code Civ. Proc. § 437c(o)(2). When a party cannot establish an

essential element or defense, a court must grant a motion for summary adjudication. Code Civ. Proc. § 437c(o)(1)-(2).

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exists are to be resolved in favor of the party opposing summary judgment. Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.

Analysis

The Volunteer Protection Act provides that a volunteer of a nonprofit organization is not liable for harm he or she caused while acting within the scope of the volunteer's responsibilities in the nonprofit organization, so long as “the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” 42 U.S.C. § 14503(a)(3). The Act defines “nonprofit organization” as a tax-exempt organization described in 26 U.S.C. § 501(c)(3) (hereafter, a “501(c)(3) nonprofit”) or “any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime” under the Hate Crime Statistics Act (28 U.S.C. § 534). 42 U.S.C. § 14505(4)(B).

The Volunteer Protection Act of 1997 was enacted to lessen the deterrence that liability actions create on volunteers offering their services. 42 U.S.C. § 14501(a); see Institute of Cetacean Research v. Sea Shepherd Conservation Soc. (9th Cir. 2014) 774 F.3d 935, 956-957 (discussing legislative history and purpose of Act “to immunize a volunteer from liability from harm caused by ordinary negligence”) (emphasis in original).1

At bar, it is undisputed that Sammie’s Friends is, and at the time of the incident was, a 501(c)(3) non-profit organization. SSUMF #3. It is also undisputed that Defendant Carroll was a volunteer of the nonprofit organization. SSUMF # 7. It is undisputed Defendant Carroll was not required to hold a license or certification to perform the duties to which she was assigned at the time of the incident. SSUMF #10.

Conduct Within the Scope of Volunteer Duties Defendant Carroll contends she was acting within the scope of her duties as a volunteer. Plaintiff disagrees and contends that Carroll was the de facto supervisor of Lenny that day. Defendant has the better argument.

Defendant Carroll testified she was volunteering as a front desk receptionist at the time of the incident. SSUMF ## 7-8; Def. App. of Exhibits, Exh. 3, 7:24-8:7. In this capacity, Carroll

1 However, the Act is limited in that it does not affect a civil action against the volunteer by the entity for which the volunteer was working. 42 U.S.C. § 14501(c). It also does not affect the liability of the nonprofit organization for whom the volunteer was working. 42 U.S.C. § 14501(d). 6

primarily answered the phone, took messages, and greeted people who were coming into the office. SSUMF # 9, Exh. 3, 8:18-22. Carroll further testified she was on the phone at the time the incident occurred. SSUMF #11, Exh. 3, 18:16-19. On the record presented, Defendant met her prima facie burden to establish that she was acting within the scope of her responsibilities at the time of the incident.

Plaintiff has presented no evidence that Defendant Carroll was acting outside of the scope of her volunteer duties as a receptionist at the time of the incident. Plaintiff offers evidence that: Lenny was in the office area where Defendant was sitting from 8:00 a.m. until the incident time of 1:07 p.m., PSSUMF ## 22, 38; Defendant was the only person in the office at the relevant time, PSSUMF # 23; Debbie Freele, was the shelter staff member in charge, but would come and go during Defendant’s shift, PSSUMF ## 40, 41; and no other staff member came to check on Lenny during the relevant time period.

PSSUMF # 44. That noted, Plaintiff has not made any evidentiary showing that Ms. Carroll was assigned responsibility for Lenny, exercised control over Lenny, made any decisions regarding Lenny's placement in the office area, or possessed any information suggesting Lenny posed a danger to Plaintiff. Defendant’s presence with the dog (and other staff members absence) does not prove, by itself, that Defendant was engaged in duties beyond her normal responsibilities and, more particularly, that she was exercising any responsibility with respect to the dog in question.

There is no material dispute as to whether Defendant Carroll was acting within the scope of her responsibilities.

Defined Wrongful Conduct

Plaintiff argues the Volunteer Protection Act does not apply because her injuries were caused by Carroll’s gross negligence, reckless misconduct, criminal misconduct, or because she acted with a conscious, flagrant indifference to the rights or safety of Plaintiff. The Court cannot agree.

[W]illful misconduct has a well-established meaning which is clearly differentiated from negligence and gross negligence. Gross negligence involves a failure to act under circumstances that indicate a passive and indifferent attitude toward the welfare of others. Negative in nature, it implies an absence of care. Willful misconduct, on the other hand, requires an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable [not possible] result, or with a positive and active disregard for the consequences. No amount of descriptive adjectives or epithets may turn a negligence action into an action for intentional or willful misconduct.

Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (1979) 96 Cal. App.3d 923, 930 (citations and quotations omitted); see also id. at 931.

At bar, Defendant met her prima facie burden of establishing that she did not engage in acts or omissions that rose to the level of gross negligence, reckless misconduct, criminal misconduct, or a conscious, flagrant indifference to the rights or safety of Plaintiff. As noted previously, Defendant has demonstrated that her responsibilities were to serve as a receptionist and she was apparently on the phone at the time of the incident. UMF 8, 9, 11. Ms. Carroll had never interacted with “Lenny” prior to the day of the incident. UMF 14. Ms. Carroll did not know how Lenny came to be in the office area on the date of the incident. UMF 15. 7

At bar, Plaintiff contends that Defendant Carroll engaged in a series of omissions on the day in question that rise to the level of gross negligence, reckless misconduct, criminal misconduct, or conscious, flagrant indifference. See 5/26/26 Opposition at 3:12-4:25, 5:1-5:4, 5:10-14, 6:2-6:3 (and citations therein). The Court is not persuaded.

There is no evidence that Defendant was tasked with or actually assumed supervision of Lenny. There is no evidence that Defendant interacted with Lenny before the incident, knew anything about any dangerous propensities for the dog, or had any reason to anticipate the dog would attack Plaintiff. There is no evidence that Defendant placed or permitted Lenny to be in the staff area. At best, Defendant Carroll’s claimed failures, e.g., to notify staff that watching a dog was not her responsibility, or to notify staff she lacked training how to handle a dog like Lenny, etc., would constitute potentially negligent acts.

On the record presented, Plaintiff has presented no evidence which creates an issue of material fact as to whether Defendant Carroll acted with the requisite mens rea, that is, willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of Plaintiff. Absent the same, the liability protections or immunity of the Volunteer Protection Act apply to Defendant.

3. CU0002023 Wendy Robinson v. Shellpoint Mortgage Servicing, et al.

One of the parties apparently reserved this date for the filing of a motion; none was filed. This matter is removed from calendar.

4. CU0002418 Andrew Ehlers v. Brandon Murray, et al.

Defendant’s motion to compel mediation and stay proceedings pending mediation is denied.

Defendants, property owners, argue that the parties’ agreement “contains a dispute resolution provision requiring that any disputes arising between the parties be submitted to mediation prior to the initiation of litigation or arbitration.” As such, Defendants seek an order compelling the parties to participate in mediation pursuant to Code of Civil Procedure section 1281.2. The Court is not persuaded.

The Dispute Resolution clause states: At the sole election and option of Owner, in writing to Contractor, all claims, disputes and matters in question arising out of, or relating to this Agreement or the breach thereof, except for claims which have been waived by the making or acceptance of final payment, shall be decided by the claim’s procedure. No claims or disputes between Owner and Contractor shall be arbitrated unless separately elected in writing by Owner at its sole election, option and discretion, in which case, binding arbitration shall take place before the American Arbitration Association under its Construction Industry Rules.

If Owner demands mediation, Contractor shall comply and participate with the mediation sought through the American Arbitration Association under its Mediation selection provisions under its Construction Industry Rules, to take place expeditiously within 60 days of demand. Faircloth Decl., Ex. A, § 9. 8