ANTHONY W. ISHII, Chief Judge.
This is an action for damages for injuries suffered by Plaintiff Jaco Van Maanen ("Plaintiff") while using a zip line near Mammoth Lakes, California. As a result of this incident, Plaintiff suffered permanent spinal cord injuries and paralysis. Plaintiff has entered into good faith settlement agreements with Defendant Youth With a Mission-Bishop and Defendant Youth With a Mission-Ahualani, formerly known as Youth with a Mission-International, Inc. See Court's Docket, Doc. Nos. 147, 148. Defendant University of the Nations, Inc. ("University" or "Defendant") is the sole remaining defendant. Plaintiff is a resident of the Netherlands, and University is incorporated and headquartered in Hawaii. This Court has jurisdiction
Plaintiff objects to University's use of the Thomas Bloomer declaration in support of its motion for summary judgment. Dr. Bloomer is the International Provost and Vice President for Academic Affairs of non-party University of the Nations-International ("International"), a global network of educational programs and ministries that are operated independently by some 450 YWAM entities around the world. International publishes the University of Nations catalog, which lists courses that independent YWAM entities pay to register in the network. Defendant contends International is a separate and distinct entity from University of the Nations, Inc.
Plaintiff argues that University did not include Dr. Bloomer in its initial disclosures under Federal Rule of Civil Procedure 26, and it should therefore be stricken. Rule 26(a) requires that a party disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Fed.R.Civ.P. 26(a)(1)(A)(i). Rule 26(e) requires a party to supplement its initial disclosures, "in a timely manner if the party learns that in some material respect the disclosure ... is incomplete[,] or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." See Fed.R.Civ.P. 26(e)(1)(A). Rule 37 states:
See Fed.R.Civ.P. 37(c).
University claims it did not include Dr. Bloomer in its Rule 26(a) initial disclosures because the International entity was not named in the Complaint. This argument is unavailing. The plain language of Rule 26(a) required University to disclose the identity of each individual, whether a party representative or not, who was likely to have discoverable information that may be used to support that University's claims or defenses. University further contends Plaintiff elicited extensive testimony about Dr. Bloomer in the May 4-5, 2011 deposition
Thus, although Dr. Bloomer was not identified in University's Rule 26(a) disclosures, his identity, position, location, and the subject of the information he possessed were made known to Plaintiff through the Fairley and Cunningham Depositions. See Fed.R.Civ.P. 26(e). The discovery cut-off in this case was July 23, 2011, which gave Plaintiff ample time after the Cunningham deposition to issue further written discovery or notice Dr. Bloomer's deposition. The Court therefore finds that University's failure to include Dr. Bloomer in the initial disclosures was harmless. Plaintiff's motion to strike will be denied.
Youth With a Mission ("YWAM") is an international non-denominational Christian ministry movement founded by Loren Cunningham, and his wife, Darlene, in the 1960s. See Cunningham Decl. ¶¶ 26-27. It consists of 20,000 volunteers, located at approximately 1,000 different independently owned and operated entities, often referred to as "bases" or "branch locations," throughout the world. See Cunningham Decl. ¶ 45. All defendants in this case are engaged in the YWAM movement.
Youth With a Mission-Bishop, doing business as Sea and Summit Expeditions ("YWAM-Bishop"), is a California religious corporation with a business address in Bishop, California. See DUMF No. 3. YWAM-Bishop is governed by its own Board of Directors that is independently selected, and meets regularly and operates pursuant to the requirements of its corporate bylaws. Its officers are appointed by the Board of Directors of Sea and Summit Expeditions. See DUMF No. 3. David Fairley is the Director of YWAM-Bishop. See Fairley Decl. ¶ 2. Plaintiff incurred the injuries that are the subject of this litigation while he was enrolled in a wilderness leadership training course at YWAM-Bishop. See Fairley Decl. ¶¶ 14-15.
Youth With a Mission-Ahualani, formerly known as Youth with a Mission-International, Inc., ("YWAM-Ahualani") is a domestic nonprofit corporation incorporated in Hawaii. See Court's Docket, Doc. No. 105, Ex. F. Loren Cunningham, the founder of the YWAM movement, currently serves as the President of YWAM-Ahualani.
Defendant University of the Nations, Inc.,
In the moving papers, the parties also refer to a non-defendant, non-legal entity known as University of the Nations-International ("International"), or the "virtual" or "global" University of the Nations. Defendant contends International is an unincorporated global network distinct from University of the Nations, Inc. See Cunningham Depo. at 197-198. According to Defendant, International does not own, operate, or administer any campus, branch or other location. See Bloomer Decl. ¶ 15. YWAM entities may choose to list one or more of their training programs in the catalog published by International, and International grants degrees and diplomas certifying the accumulation of credits from registered courses. See Bloomer Decl. ¶¶ 18-19. Defendant maintains International does not provide any educational services, and does not have the power to direct the manner or method of the program, the tuition or fees, the teachers, or any other operational aspect of the registered courses. See Bloomer Decl. ¶¶ 23, 28-29, 38; Cunningham Decl. ¶¶ 76-82. Defendant contends University of the Nations, Inc., on the other hand, is merely another YWAM base that offers courses in the International network. See Fairley Decl. ¶ 33; Cunningham Decl. ¶ 65.
Plaintiff argues that although Mr. Cunningham testified that the University of the Nations course catalog is published by International, the course catalog states:
See Court's Docket, Document 105, Ex. J. Plaintiff argues that this, along with the fact that the address for University and International are the same, no legal documents exist for International, and the course catalog does not differentiate between University and International suggests that University and International are a single entity. See PSDF No. 3; Cunningham Depo. at 95, 255, 286, 298, 314; Court's Docket, Doc. No. 105, Exs. I, K, L. The Court views the facts in the light most favorable to Plaintiff and will therefore assume, for purposes of summary judgment, that University and International are the same entity.
The parties largely agree on the facts surrounding the injury giving rise to this litigation. In 2007, Plaintiff Jaco Van Maanen, who was 21 years old at the time, enrolled in a Youth With a Mission Discipleship Training School ("DTS") course at Youth With a Mission Heidebeek, a YWAM base in the Netherlands. See Pl.'s Depo. at 41. In January 2008, as he was nearing the end of his DTS course, he began researching other opportunities within the YWAM movement to develop his Christian missionary skills while participating in outdoor activities. See Pl.'s Depo. at 280. He turned to the online catalog of the University of the Nations, and found a course entitled School of Outdoor Adventure and Recreation ("SOAR") located at YWAM-Bishop (doing business as Sea and Summit Expeditions) in the United States. See Pl.'s Depo. at 147-50. Plaintiff made the decision to enroll in the SOAR course in reliance on his belief that Sea and Summit Expeditions was an entity that was part of and subscribed to the values of the YWAM movement. See DUMF No. 11. Plaintiff consulted the Sea and Summit website, applied for the SOAR course, and was accepted in August 2008. See Court's Docket, Doc. No. 105, Ex. O. In late November 2008, after enrolling in the SOAR course, Plaintiff emailed Sea and Summit Expeditions asking for more information on how SOAR is part of the University of the Nations, because he thought he might qualify for government financial assistance in the Netherlands if he were enrolled in a college course. See Court's Docket, Doc. No. 104, Ex. 18. Ultimately, Plaintiff concluded he could not get government aid for the SOAR course, and Plaintiff did not enroll in the SOAR course in order to earn credits toward a University degree. See DUMF No. 12; Pl.'s Depo. at 135-36.
In March 2009, Plaintiff traveled from his home in the Netherlands to the YWAM-Bishop campus and began the SOAR course. See Pl.'s Depo. at 217. After successfully completing the first portion of the course, Plaintiff, the other students, and the SOAR instructors traveled to a YWAM-Bishop campsite in the Inyo National Forest near Mammoth, California. On June 17, 2009, while at this campsite, Plaintiff, the other students, and one of the SOAR course instructors hiked a short distance to a zip line that had been erected for the campers. See Cokely Depo. at 20, 49-50; Fairley Depo. at 129; Fairley Decl. ¶ 15. The zip line was not open to the public at large,
On March 17, 2010, Plaintiff filed the instant action against YWAM-Bishop, YWAM-Ahualani, and University. Plaintiff alleged that YWAM-Bishop had negligently failed to provide adequate supervision of the zip line and had breached its duty to use due care in erecting the zip line. Plaintiff alleged direct negligence, as well as negligence based on actual agency, ostensible agency, and alter ego against YWAM-Ahualani and University. Plaintiff also alleged negligence based on common carrier liability against all three Defendants. As discussed above, Plaintiff has settled his claims against YWAM-Bishop and YWAM-Ahualani, leaving only the claims against University.
University and YWAM-Bishop are separate and independent entities, and they have not commingled funds; shared revenue; shared assets; shared or had in common directors, officers, staff members, offices, real or personal property or professional service providers. Neither University nor YWAM-Bishop has appointed or participated in the appointment or supervision of the other's officers or staff. See Fairley Decl. at ¶¶ 5-19, 19-26; Cunningham Decl. at ¶¶ 5, 7-10, 11-24; Bloomer Decl. at ¶¶ 2-44. However, Plaintiff asserts the following facts suggest that University does have the right to control certain aspects of YWAM-Bishop, including matters of mission, staff members, admission of students and other important decisions as to the manner or means of conducting the operation:
In the course of enrolling in SOAR, Plaintiff read and/or signed various types of documentation that YWAM-Bishop transmitted to Plaintiff:
See DUMF No. 6; Pl.'s Depo. at 31, 92-105; 109; 113; Fairley Decl. ¶ 18. The documentation that YWAM-Bishop made available to Plaintiff during the course of his enrolling in SOAR, that he read and/or signed, reflected that Plaintiff was contracting with Sea and Summit Expeditions (YWAM-Bishop) for training services that Sea and Summit Expeditions would deliver to Plaintiff for consideration in the form of tuition payments that Plaintiff would make to Sea and Summit Expeditions. See DUMF Nos. 7-8; Pl.'s Depo. at 31, 92-105; 108-109; Fairley Decl. ¶¶ 4, 12, 18; Court's Docket, Doc. No. 104, Ex. 14. Defendant contends, therefore, that YWAM-Bishop had the exclusive right to control the means and method by which it would deliver the SOAR course to Plaintiff.
Plaintiff disputes this characterization, and alleges that the University of the Nations course catalog specifically indicated that Plaintiff was contracting with YWAM-Bishop as the agent of the principal, University of the Nations, Inc., and therefore University had the right to control the means and method by which YWAM-Bishop would deliver SOAR to Plaintiff. See PRDUMF Nos. 7-8; Court's Docket, Doc. No. 105, Ex. J at 9, 11, 22, 26, 50, 99, 154. Plaintiff further contends that email exchanges between Plaintiff and SOAR instructor Aaron Fisher, wherein Mr. Fisher refers to YWAM-Bishop and University of the Nations as "we," suggest YWAM-Bishop was the agent of University. See PRDUMF No. 7; Court's Docket, Doc. No. 105, Exs. O, P.
Defendant maintains Sea and Summit Expeditions' personnel had ultimate authority over, and were the day-to-day managers of, the SOAR course, and Plaintiff observed this to be the case during his participation in the course. See DUMF No. 9; Pl.'s Depo. at 60-61, 65-66, 259, 261; Fairley Depo. at 61-62; Fairley Decl. ¶¶ 13-15, 18; Cunningham Decl. ¶¶ 22-25. Plaintiff disputes this, see PRDUMF No. 9, and submits the following evidence in support of his contention that University had the ultimate authority over the SOAR
Finally, Defendant contends Plaintiff's experience with YWAM before starting the SOAR program at YWAM-Bishop provided him with evidence of decentralized control
Summary judgment is appropriate when it is demonstrated that there exists no
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir.2006). A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Miller, 454 F.3d at 987. "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id.; Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Miller, 454 F.3d at 987. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. 2548.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.2000). The opposing party cannot "`rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that `sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Fed. R. Civ. Pro. 56(e)); Miller, 454 F.3d at 987. In attempting to establish the existence of this factual dispute, the opposing party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348; First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. 1575; Miller, 454 F.3d at 987. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000), and that
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290, 88 S.Ct. 1575; Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir.2007). Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to See whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).
In resolving the summary judgment motion, the Court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468, 82 S.Ct. 486; Price v. Sery, 513 F.3d 962, 965 n. 1 (9th Cir.2008); Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061, 1064 (9th Cir.2007). "[I]n ruling on a motion for summary judgment, the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Miller, 454 F.3d at 987; Stegall v. Citadel Broad., Co., 350 F.3d 1061, 1065 (9th Cir. 2003). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).
Additionally, the Court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the Court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001).
Defendant first contends it is undisputed that University does not have day-to-day, or any other, control over YWAM-Bishop. Moreover, the two entities have not disregarded their separate corporate status such that University is vicariously liable for YWAM-Bishop's negligence based on an actual agency or alter ego theory. Next, Defendant argues it is entitled to partial summary judgment on Plaintiff's ostensible agency claim because Plaintiff did not rely on the belief that University was YWAM-Bishop's agent, did not change his position in reliance on that belief, and had no reasonable belief of an agency relationship. Finally, Defendant argues University had no legal duty to Plaintiff and is therefore also entitled to summary judgment on Plaintiff's direct negligence claims based on common carrier liability and negligent misrepresentation, training, and hiring.
In opposition to Defendant's motion, Plaintiff first notes that he "recently informed counsel for University of the Nations that he would be voluntarily dismissing his alter ego claim." See Court's Docket, Doc. No. 105, Ex. B. The record currently reflects that Plaintiff has taken no action to dismiss the alter ego claim, but he appears to have abandoned that claim, as he did not address any arguments made by Defendant on this issue. With respect to actual agency, Plaintiff alleges there is a genuine and triable issue of fact as to whether an actual agency relationship existed between University and YWAM-Bishop because University had the exclusive right to decide whether to designate YWAM-Bishop as a branch campus location, whether to approve the curriculum of the SOAR course for credit, and charged a $25 registration fee from each student's tuition. Plaintiff further argues there is a genuine triable issue of material fact as to whether an ostensible agency relationship between University and YWAM-Bishop existed because Plaintiff believed he was dealing with University of the Nations in connection with the activities of the SOAR course. Plaintiff also contends there is a genuine and triable issue of material fact as to whether University was directly negligent because it owed Plaintiff a duty of care to erect a safe zip line, hire knowledgeable instructors, provide adequate supervision, and have in place policies and procedures designed to ensure the safety of its students. Finally, Plaintiff maintains that University is a common carrier for its operation of the zip line at issue here, and is therefore subject to a heightened standard of care. Plaintiff contends University is a common carrier because the zip line was available to anyone who paid tuition. For these reasons, Plaintiff argues summary judgment is precluded.
For purposes of summary judgment, the Court will assume that YWAM-Bishop was negligent in its supervision of Plaintiff and the zip line. The only remaining issues, therefore, are: 1) whether there is any basis on which to hold University vicariously liable for YWAM-Bishop's negligence; and 2) whether University was directly negligent. At the heart of each of these issues is the relationship between University and YWAM-Bishop.
Under California law, "[e]very one who offers to the public to carry persons, property[,] or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry." Cal. Civ.Code § 2168; Platzer v. Mammoth Mountain Ski Area, 104 Cal.App.4th 1253, 1257, 128 Cal.Rptr.2d 885 (Cal.App.2002). "To be a common carrier, the entity merely must be of the character that members of the general public may, if they choose, avail themselves of it." Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 1509-10, 3 Cal.Rptr.2d 897 (Cal.App. 1992). "The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently; and hence he is regarded, in some respects, as a public servant." People v. Duntley, 217 Cal. 150, 164, 17 P.2d 715 (Cal.1932). In contrast, private carriers are those who carry for hire, but do not come within the definition of a common carrier. Samuelson v. Public Utilities Com., 36 Cal.2d 722, 730, 227 P.2d 256 (Cal.1951); Duntley, 217 Cal. at 163-64, 17 P.2d 715. Private carriers "make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others
Common carriers are held to a higher standard of care than private carriers. Section 2100 of the California Civil Code provides:
Cal. Civ.Code § 2100. Section 2101 states: "A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care." Cal. Civ.Code § 2101. Thus, a common carrier is under a duty to transport the persons he is carrying "with reasonable skill and with the utmost prudence and caution." Gomez v. Walt Disney Company, 35 Cal.4th 1125, 1127, 29 Cal.Rptr.3d 352, 113 P.3d 41, 42 (Cal.2005).
There is no dispute that the zip line at issue here was erected by YWAM-Bishop. Plaintiff's common carrier argument with respect to University appears to be that YWAM-Bishop was acting as University's agent when it erected the zip line. The common carrier analysis, therefore, applies to YWAM-Bishop. With respect to the first factor, there is no evidence that YWAM-Bishop maintains a place of regular business for the purpose of transportation. YWAM-Bishop is engaged in offering outdoor recreation and Christian ministry programs. The zip line was a temporary structure available at one of YWAM-Bishop's satellite campsites for only a few days. The national forest where the zip line was erected technically was open to the public, but there is no evidence that use the zip line itself was offered to the public. Similarly, there is no evidence that YWAM-Bishop charges standard fees for use of its zip line. Plaintiff contends the tuition charged by YWAM-Bishop for its programs is similar to the admission fee or lift ticket charged by roller coaster or ski lift operators, who have been found to be common carriers. See Gomez, 35 Cal.4th at 1127, 29 Cal.Rptr.3d 352, 113 P.3d at 42; Squaw Valley Ski Corp., 2 Cal.App.4th at 1509-10, 3 Cal.Rptr.2d 897. Use of the zip line, however, is incidental to the other services and amenities paid for by the tuition fee. The zip line was limited to a specific group of campers who had applied for and were admitted to a YWAM-Bishop program.
Where there are no material facts in dispute, "[w]hether a party is a common carrier within the meaning of Civil Code section 2168 is a matter of law...." Squaw Valley Ski Corp., 2 Cal.App.4th at 1506, 3 Cal.Rptr.2d 897. The court finds that Plaintiff has failed to allege a triable issue as to whether YWAM-Bishop was a common carrier. Accordingly, summary judgment on Count II will be granted in favor of Defendant.
A negligence claim generally requires a plaintiff to prove the following
Duty requires a special relationship between the defendant and the plaintiff. See id. at 1254. The California Supreme Court has held that where there is no relationship between plaintiff and defendant, and public policy does not dictate imposing a duty on the defendant, no legal duty of care exists. See Parsons v. Crown Disposal Co., 15 Cal.4th 456, 483, 63 Cal.Rptr.2d 291, 936 P.2d 70 (Cal.1997). In determining whether to impose a legal duty, courts take into account the following policy considerations: "[1] foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of connection between the defendant's conduct and the injury, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved." Friedman, 107 Cal.App.4th at 465, 131 Cal.Rptr.2d 885 (quoting Rowland v. Christian, 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561 (Cal. 1968)).
Plaintiff argues the duty of care in the instant case arises from the university-student relationship between Defendant and Plaintiff. Plaintiff alleges all the information and documentation provided led him to believe that YWAM-Bishop was a branch campus of the University of the Nations, and that International (the publisher of the course catalog) and University (the campus in Hawaii) were a single entity. Even viewing these facts in the light most favorable to Plaintiff, Plaintiff's belief is insufficient to establish a duty of care. While Plaintiff may have learned of the SOAR course from the University of the Nations course catalog, it is undisputed that he contracted only with YWAM-Bishop, doing business as Sea and Summit Expeditions. He signed written agreements only with Sea and Summit Expeditions for services to be provided only by Sea and Summit Expeditions, he paid tuition only to Sea and Summit Expeditions, and he entered the United States on a visa sponsored by Sea and Summit Expeditions. Sea and Summit Expeditions provided Plaintiff with written assurance that he would be covered by a personal injury liability policy. Although YWAM-Bishop paid a registration fee to list the SOAR course in the University of the Nations course catalog, provided required information on course content, and paid an additional small fee for each enrolled student who sought course credit from University of the Nations, this does not suggest, as Plaintiff argues, that University had any control over YWAM-Bishop's safety policies, or the hiring, training, and supervision
Plaintiff also argues that the Friedman policy considerations favor imposing a legal duty upon Defendant. With respect to the first factor, the Court agrees it was foreseeable that an improperly erected zip line would cause an accident, but there is no evidence that University approved or was even aware of the zip line's existence. As for the second and third factors, it is undisputed that Plaintiff was injured, but the connection between University's conduct and Plaintiff's injury is attenuated. University did not erect the zip line, or leave it in the state of disrepair that allegedly caused Plaintiff's injuries. Plaintiff makes no argument as to the fourth Friedman factor, and the Court can find no reason to assign moral blame to University for Plaintiff's injuries. With respect to the fifth factor, Plaintiff argues that imposing a duty on University is likely to prevent future injuries, and notes that YWAM-Bishop suspended the SOAR course in part because of Plaintiff's accident. The Court agrees that imposing a duty might prevent further injuries in YWAM-Bishop courses registered with University, but it would not prevent YWAM-Bishop from offering courses without registering them with University. Plaintiff further argues that the burden of imposing a duty upon Defendant would be minimal because Defendant already requires YWAM-Bishop to seek approval to offer a course for university credit, pay a registration fee, submit a written summary of what will be taught, and seek approval for any radical changes to course content. Plaintiff suggests that requiring Defendant to consider potential safety hazards and require safety protocols would merely be an extension of what Defendant already does. The Court disagrees. Imposing a legal duty on Defendant for personal injuries incurred by students participating in courses taught at hundreds of YWAM bases listed in the course catalog would amount to a tremendous burden. It would require Defendant to go far beyond its current role of collecting a nominal registration fee and vetting course content to ensure that religious instruction adheres to YWAM values. Defendant would be forced to expend considerable time and resources reviewing the day-to-day operations of each course, and would be liable for injuries to all students participating in the courses. Finally, Plaintiff makes no argument with respect to the seventh Friedman factor, the availability, cost, and prevalence of liability insurance for the risk involved, but the record suggests that YWAM-Bishop did carry personal injury liability insurance. Plaintiff has proffered no evidence regarding the availability or cost of similar coverage for University. On balance, the Court finds that public policy considerations do not favor imposing a duty of care on University. Accordingly, the Court will grant summary judgment on Count III in favor of Defendant.
Plaintiff alleges University is liable for the negligence of YWAM-Bishop under a principal-agent theory. In California, "[a]n agent is one who represents another, called the principal, in dealings with third persons." Cal. Civ.Code § 2295. An agency is actual when the agent really is employed by the principal. Cal. Civ.Code § 2299. The central inquiry under the agency theory of liability is "`whether the degree of control exerted over the subsidiary by the parent is enough to reasonably deem the subsidiary
Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 541-542, 99 Cal.Rptr.2d 824, 838-39 (Cal.App.2000). The control exercised in a typical parent-subsidiary relationship is insufficient to create an agency relationship. Rather, "the parent must be shown to have moved beyond the establishment of general policy and direction for the subsidiary and in effect taken over performance of the subsidiary's day-to-day operations in carrying out that policy." Id. at 542, 99 Cal.Rptr.2d 824 (citing Calvert v. Huckins, 875 F.Supp. 674, 679 (E.D.Cal.1995); Rollins Burdick Hunter of So. Cal., Inc. v. Alexander & Alexander Servs., Inc., 206 Cal.App.3d 1, 9, 253 Cal.Rptr. 338 (Cal.App.1988); American Intern. Airways v. Kitty Hawk Group, 834 F.Supp. 222, 225 (E.D.Mich. 1993); Bellomo v. Pennsylvania Life Co., 488 F.Supp. 744, 745 (S.D.N.Y.1980)). It is not essential that the right of control be exercised. All that is needed is the existence of the right of control. See Malloy v. Fong, 37 Cal.2d 356, 370, 232 P.2d 241, 249 (Cal.1951).
Plaintiff argues that an agency relationship between Defendant and YWAM-Bishop exists because Defendant has the right to control YWAM-Bishop by requiring that the course work contain certain foundational values, requiring annual paperwork concerning course content, collecting a $25 registration fee from each student's tuition, and having certain mandates regarding which entities can refer to themselves as part of YWAM and University of the Nations. Plaintiff cites a case involving a minor plaintiff who was injured by a divinity student's reckless driving while attending the San Mateo Presbyterian Church's vacation Bible school. See Malloy, 37 Cal.2d at 362, 232 P.2d 241. In that case, the California Supreme Court held that the there was an agency relationship between the Presbytery of San Francisco and the San Mateo Presbyterian church, based on the following factors: (1) the alleged principal pays some or all of the alleged agent's expenses; (2) the alleged principal has the authority to approve or disapprove of who the alleged agent hires, and (3) the alleged principal is responsible for extending into new localities the type of "movement" the alleged agent supports. See Malloy, 37 Cal.2d at 366, 232 P.2d 241. Plaintiff argues these factors are satisfied by the evidence in the instant case. But Malloy is distinguishable because the California Supreme Court relied on the fact that the Presbytery had the right to install and remove its ministers, to approve or disapprove their transfer, and to supervise and control the activities of the local churches, particularly those in the mission stage, like the San Mateo church. See id. at 370, 232 P.2d 241. Here, there is no indication that Defendant had the right to hire or supervise YWAM-Bishop's staff, or to control the activities of YWAM-Bishop.
Indeed, other courts have found no agency relationship under similar facts. In Ross v. Colorado Outward Bound School, Inc., 603 F.Supp. 306 (W.D.N.Y. 1985), the court considered the agency relationship in determining whether there
Under California law, an agency is ostensible when a principal causes a third person to believe another to be his agent, who is not really employed by him. Cal. Civ.Code § 2300. Ostensible agency is rooted in the doctrine of estoppel, which requires a showing of "representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury." Kaplan v. Coldwell Banker Residential Affiliates, Inc., 59 Cal.App.4th 741, 747, 69 Cal.Rptr.2d 640 (Cal.App.1997) (quoting Preis v. American Indemnity Co., 220 Cal.App.3d 752, 761, 269 Cal.Rptr. 617 (Cal. App.1990)). The California Supreme Court has stated:
J.L. v. Children's Institute, Inc., 177 Cal.App.4th 388, 99 Cal.Rptr.3d 5 (Cal.App. 2009); See also Mejia v. Community Hospital of San Bernardino, 99 Cal.App.4th 1448, 1456-1457, 122 Cal.Rptr.2d 233, 239 (Cal.App.2002); Deutsch v. Masonic Homes of California, Inc., 164 Cal.App.4th 748, 80 Cal.Rptr.3d 368 (Cal.App.2008). Courts have found "there is rarely any basis on which the principal may be held liable in tort for the acts of an ostensible agent. The essential element of reliance on the misrepresentations or conduct of the principal is usually lacking." Children's Institute, 177 Cal.App.4th at 405, 99 Cal.Rptr.3d 5 (quoting 3 WITKIN, SUMMARY OF CAL. LAW (10th ed. 2005)).
Plaintiff contends that he reasonably relied on representations made by University concerning its relationship with
While Plaintiff's reasonable belief is a necessary factor, it is not sufficient to establish ostensible agency. The second prong of the ostensible agency test requires a showing that reliance on this belief caused a change in position and resulting injury. Plaintiff cites Kaplan v. Coldwell Banker Residential Affiliates, Inc., 59 Cal.App.4th 741, 69 Cal.Rptr.2d 640, a fraud case in which the plaintiff testified that he relied on advertising using the reputable name "Coldwell Banker," the logo, and the word "member" to believe that a franchisee was the ostensible agent of Coldwell Banker. Plaintiff relied on these representations in deciding to engage the franchisee to purchase real property that Plaintiff later discovered was not as represented, and the Court of Appeal found a triable issue as to ostensible agency. See Kaplan, 59 Cal.App.4th at 744, 69 Cal.Rptr.2d 640. Plaintiff contends that just as Kaplan relied on the Coldwell Banker name, Plaintiff relied on the representations in the University of the Nations course catalog concerning its relationship with YWAM International, Inc. and YWAM-Bishop in deciding to enroll in the SOAR course which led to his injury.
Plaintiff's testimony, however, reveals that he enrolled in the SOAR course not in reliance on his belief that YWAM-Bishop was the agent of University, but rather in reliance on his belief that YWAM-Bishop was an entity that was part of and subscribed to the values of the YWAM movement. From his prior experience in the movement, he knew University of the Nations was affiliated with YWAM, and he looked to the University of the Nations course catalog to find a YWAM outdoor program. In J.L. v. Children's Institute, Inc., the California Court of Appeal considered a similar case in which a nonprofit corporation provided childcare services through its own licensed day care centers, and also maintained a list of licensed family day care homes that provided childcare services. 177 Cal. App.4th at 392, 99 Cal.Rptr.3d 5. The plaintiff, whose child had been sexually assaulted at a family day care home referred by the nonprofit, argued that the family day care home was the ostensible agent of the nonprofit. Id. at 403, 99 Cal.Rptr.3d 5. The Court of Appeal rejected this argument, and distinguished Kaplan, finding that the evidence showed that the family day care home operated independently of the nonprofit, and there was no evidence that it had held itself out as part of the nonprofit, or that the plaintiff believed she was dealing with the nonprofit
The alter ego doctrine provides that "[a] corporate identity may be disregarded — the `corporate veil' pierced — where an abuse of the corporate privilege justifies holding the equitable ownership of a corporation liable for the actions of the corporation." Sonora Diamond, 83 Cal. App.4th at 538, 99 Cal.Rptr.2d 824. Under California law, there are two elements required to invoke the alter ego doctrine. "First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone." Id. (citing Automotriz Del Golfo De California v. Resnick, 47 Cal.2d 792, 306 P.2d 1, 3 (1957); Hennessey's Tavern, Inc. v. American Air Filter Co., 204 Cal.App.3d 1351, 1358, 251 Cal.Rptr. 859 (Cal. App.1988)).
Id. No single factor is determinative, and courts must look at the totality of the circumstances to determine whether to apply the alter ego doctrine.
Plaintiff has indicated that he intends to dismiss his alter ego claim against University and therefore raised no arguments as to alter ego in his Opposition to University's motion. See Court's Docket, Doc. No. 105 at 3. The Court has reviewed the record and did not find any evidence tending to refute University's argument that University and YWAM-Bishop have not commingled funds, shared revenue, shared assets, shared or had in common directors, officers, staff members, offices, real or personal property, or professional service providers. For these reasons, the Court will grant summary judgment in favor of University with respect to Count VIII.
For the reasons stated herein, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
