Filed 9/6/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

HUNTSMAN-WEST FOUNDATION et al.,

E081025

Plaintiffs and Appellants, (Super.Ct.No. RIC2004136) v.

OPINION

MELINDA SUSAN SMITH,

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.

Affirmed.

Garrett & Jensen and Boyd F. Jensen II for Plaintiffs and Appellants.

The Safarian Firm, Harry A. Safarian and Christina S. Karayan for Defendant and

Respondent.

Plaintiffs and Appellants Andrea Klein Gregg (Gregg) and the Huntsman-West

Foundation (the Foundation; collectively, plaintiffs) appeal the grant of a summary

judgment motion granted in favor of defendant and respondent Melinda Susan Smith

(Smith).

1 Gregg dated Dennis James Babcock (Babcock). Gregg had created the Foundation

and planned to donate her assets to be used for charitable endeavors. Babcock lived on

Dodd Street in Mira Loma (Premises). Babcock lived alone on the Premises, which had

belonged to his deceased wife, Mary Babcock (Mary1). When Mary passed away,

Babcock was allowed to remain on the Premises until he remarried. After he remarried

or upon his death, Mary’s daughter, Smith, would be given the Premises. At some point

in their relationship, Babcock allowed Gregg to store her items (Personal Property) on the

Premises in a trailer and in the garage. When the relationship soured, Gregg wanted the

Personal Property returned but Babcock initially insisted that he could not allow her

access to the Premises. When Gregg was finally able to access the Premises, most of

Gregg’s Personal Property was missing from the trailer and garage.

Plaintiffs brought suit against Babcock and Smith on the grounds of general

negligence, intentional tort, and premises liability for the loss of the Personal Property.

Smith brought her motion for summary judgment on the grounds that she had no duty to

protect the Personal Property as she had no control over the Premises or the Personal

Property. The trial court granted summary judgment.

On appeal, plaintiffs contend the trial court erred by sustaining Smith’s evidentiary

objections; that they properly raised the issues of agency, mutual interest, joint venture,

and ratification in the form complaint and the trial court erred by finding they were not a

1 We refer to some individuals by their first names for clarity due to shared last names. No disrespect is intended.

2 proper basis to deny the Motion; and, as to Gregg, that the trial court erroneously

considered that Gregg had been convicted of elder abuse against Babcock.

FACTUAL AND PROCEDURAL HISTORY

A. COMPLAINT

On October 20, 2020, plaintiffs filed their complaint against Babcock and Smith

(Complaint).2 Gregg had created the Foundation in 2019. She intended to donate her

assets to the Foundation as she wanted to support various charitable causes. The

Complaint included causes of action for general negligence, intentional tort, and premises

liability. Plaintiffs sought $1,029,714.96 in damages for the loss of Gregg’s Personal

Property.

In support of the Complaint, Larry Krepps (Krepps), president of the Foundation,

provided a narrative as to the facts supporting the Complaint.3 Babcock proposed to

Gregg in May 2015 but she did not agree to marry him until August 2015. Babcock kept

putting off the wedding date because he claimed to be afraid to tell Smith that he was

getting married. Babcock’s ex-wife, Mary, had allowed him to stay in the Premises

unless he remarried.

2 The motion for summary judgment was brought solely by Smith; Babcock is not a party to this appeal.

3 In setting forth the facts of the narrative by Krepps, which was presented with the Complaint, we do not rely on the facts in resolving the appeal. The narrative is almost identical to the declaration submitted by Krepps in support of the opposition to the Motion, which the trial court found the majority of was based on hearsay, lack of foundation, improper conclusions of fact, and based on speculation and conjecture.

3 In 2019 Gregg moved the Personal Property, which consisted of clothes, fabric,

gold, silver, and other assets, into the Premises; specifically, the garage and a trailer.

Gregg put her own lock on the trailer and was the only person who possessed a key.

Babcock promised to care for and protect the Personal Property.

In October 2019 Babcock advised Smith that he was going to marry Gregg. Smith

was angry and advised Gregg to stay away from Babcock. Gregg asked Babcock if she

could come to the Premises to ensure that her Personal Property was safe. He told her

that she was not allowed on the Premises because Smith would not allow it. Krepps sent

a letter to Babcock in August 2020 seeking to have access to the Premises so that Gregg

could obtain the Personal Property. Gregg and Krepps obtained permission to enter the

Premises to obtain the Personal Property from the Riverside County District Attorney’s

Office and on September 16, 2020, went to the Premises to view the Personal Property.

Babcock denied entry claiming that Smith had to be present because the Premises

belonged to her and she was “in charge.” Babcock finally allowed entry to Gregg. She

went to the trailer and her lock had been removed; it was almost empty. Babcock would

not tell Gregg what happened to the Personal Property. Some of the fabric she left in the

garage was found sitting outside the garage. It had been damaged by rain, sun, and wind;

most of the Personal Property was missing from the garage. Krepps insisted that

Babcock later contacted him and stated he had taken the Personal Property.

As exhibits, plaintiffs provided an inventory of the Personal Property; photographs

of the purported Personal Property; and photographs of the trailer and garage after the

Personal Property was missing.

4

B. MOTION FOR SUMMARY JUDGMENT

Smith filed a motion for summary judgment on November 22, 2022 (Motion).

The ground for summary judgment was that there were no triable issues of fact based on

her having no control over the Premises or Personal Property.

Smith contended that plaintiffs were unable to prevail on the three causes of

action. As for premises liability, the undisputed facts unequivocally showed that Smith

had no control over the Premises or the Personal Property. Smith owed no duty to Gregg.

Any claims that Smith had any connection to the Personal Property was based on

speculation and hearsay. As for the intentional tort, plaintiffs failed to allege the

underlying tort. Further, they could not prevail on this claim as there was no evidence

linking Smith to the Personal property.

Smith submitted a separate statement of undisputed facts (separate statement).

She relied on her own declaration and excerpts from a deposition taken of Babcock.

Babcock had lived on the Premises since 2015 when Mary passed away. Smith had not

lived on the Premises for 40 years. Babcock exercised all control and management of the

Premises. Starting in 2019, Gregg stored her Personal Property on the Premises. Smith

had never been involved in the moving or storing of the Personal Property. Smith had

never had any control over Babcock and his decisions regarding the Personal Property.

Smith had never prevented Gregg from removing the Personal Property and had no

control over the decision-making of Babcock in relation to the return or destruction of the

Personal Property.

5 Smith submitted several exhibits with the Motion. Smith provided her own

declaration. Also attached were excerpts from Babcock’s deposition. In addition, Smith

attached an incident report from the Riverside County Sheriff’s Department regarding

allegations of elder abuse and embezzlement against Babcock filed on October 22, 2019.

Pursuant to the investigation, Babcock had allowed Gregg to handle his finances and

agreed to move approximately $175,000 from his savings account into a joint account

with Gregg. The amount was never transferred to the joint account, and he only had $200

in his bank account. He suspected Gregg had taken the money. She also took two of his

credit cards and refused to return them. Gregg also wanted to change Babcock’s trust.

Further, Gregg was supposed to pay taxes for Babcock but the money was never paid.

On October 28, 2021, Gregg pled guilty to elder abuse. She was ordered to pay

$354,987.26 in restitution to Babcock.

C. OPPOSITION TO MOTION

Plaintiffs filed opposition to the Motion on January 24, 2023. Plaintiffs alleged

that the narration provided by Krepps with the Complaint supported the factual allegation

that Smith had control of the Premises and the Personal Property. They insisted that

Smith was the “overarching actor in ‘controlling’ access to the property and personally,

her stepfather Dennis Babcock.”

Plaintiffs provided a statement of facts but did not cite to any sources. They

insisted that the separate statement presented by Smith did not comply with Code of Civil

Procedure section 437c. The separate statement consisted of arguments of counsel that

were unsubstantiated.

6 Plaintiffs provided that the Motion should be denied as Smith had a controlling

relationship over Babcock. Krepps, Gregg, Larry Gregg (Larry4), and Christine Kidder

(Kidder) could all testify about the controlling relationship. Further, Smith had provided

deposition testimony, and in that testimony, she admitted to obtaining restraining orders

for herself and Babcock against Gregg. Plaintiffs then provided authority on agency

relationships, joint ventures, and ratification, but provided no argument as to how they

applied to the case.

Attached to the Opposition were declarations by their attorney Boyd Jensen

(Jensen), Krepps, Larry, Gregg, and Kidder. Jensen declared that Gregg had been made

out to be a felon. He provided, “while that past behavior may be relevant, no foundation

was made to exclude it (CASI 211.)”

Krepps also provided a declaration. He was a leader in the church attended by

Gregg, Larry, Babcock, and Mary. Gregg asked him to be the CEO of the Foundation.

He then provided the same information as contained in the narration of the Complaint.

Krepps contacted Babcock to try to resolve the issues between Babcock and Gregg.

Babcock told him that Babcock was not allowed to speak with Gregg. Krepps stated, “I

am informed and believe that Melinda Smith was listening in because she took the phone

from Dennis and spoke to me.” Krepps tried to get her to allow Babcock to meet with

Gregg, but Smith refused to let them meet or talk. Smith told him “something like she

had him ‘on lock-down.’ ” Krepps indicated that Smith made it clear she was in control

4 Larry is Gregg’s former spouse.

7 of Babcock. Krepps further declared that Smith had never contacted him about coming

to the Premises to allow them to pick up the Personal Property. Krepps’s declaration then

provided the same information as in the narration.

Larry provided a declaration. He helped Gregg and Babcock move all of the

Personal Property into the trailer and garage on the Premises. He went with Gregg on

September 16, 2020, to try to gain access to the Premises to retrieve the Personal

Property. Babcock told him directly that Smith had to be there because it was her house

and she was in charge. Babcock finally allowed entry and the trailer was “almost”

empty. Gregg saw some of her belongings around Babcock’s house and took

photographs.

Gregg provided her own declaration. Gregg acknowledged that since 2015,

Babcock had maintained the Premises and paid all the expenses. Smith had not paid any

of the expenses. However, she insisted that Smith was the owner of the Premises. She

provided similar facts as the other declarants regarding her relationship with Babcock and

that she stored the Personal Property on the Premises. Gregg insisted that Smith came to

her house on October 22, 2019, with Babcock, and stated in their presence that Babcock

was not to speak with Gregg. She insisted that Babcock told Gregg she could not retrieve

the Personal Property because Smith would not allow it. She also made statements

regarding conversations between Krepps and Smith, and also Babcock and Larry. Smith

obtained a restraining order against Gregg.

8 Kidder’s declaration was provide with the Opposition. She lived in Texas. She

was Babcock’s cousin. She insisted that after Mary died, Smith helped Babcock with his

finances. At one point, Kidder wanted Babcock to visit her, but he said the flight was too

expensive. Kidder declared she did not believe him, and “I thought most likely it was

due to [Smith]’s control of his finances and his life. It was my observation that [Smith]

did control his life.” Kidder had been told that Smith owned the premises. She claimed

to “know” that after Gregg stored her Personal Property on the Premises, she was not

allowed to retrieve the Personal Property. Babcock was not cooperative “but it was

definitely because [Smith] had a hold over him.” She contacted Smith, but Smith got

upset with her and refused to allow Babcock to contact Gregg. She called Babcock at

one point in time and he was headed to see an attorney. He was frightened. Kidder

believed he was only going to an attorney because Smith was controlling him. She called

“protective services” about her concerns that Smith was controlling Babcock. She later

found out that Smith had obtained a restraining order against Gregg.

Exhibits to the Opposition included an excerpt from a deposition taken of Smith

on January 11, 2023. It showed that there was a restraining order against Gregg. Mary’s

will was also provided as an exhibit. The will provided that Babcock could use the

Premises during his lifetime as long as he did not remarry. He was required to “pay all

real property taxes, house fire and extended coverage insurance [and] keep the house in

good repair.” Upon his death or remarriage, the Premises would go to Smith, as the

executor of the will.

9 Plaintiffs also submitted a statement of material disputed and undisputed facts.

They disputed each of the facts in the separate statement that Smith had done nothing

with the Personal Property and had no control over the items.

D. EVIDENTIARY OBJECTIONS AND REPLY

Smith filed evidentiary objections against the Opposition. Objections 1 through 8

were to portions of the declaration provided by Krepps. The objections were on the

grounds of hearsay, lack of personal knowledge, speculation, and lack of foundation.

Objections 1 through 4 and 8 referred to Krepps’s statements regarding conversations

between Gregg and Babcock. This also involved his statement that he “learned” that

Mary had placed in her will that Babcock could stay in the Premises until he remarried.

He was “informed” that Babcock told Smith that Babcock was going to marry Gregg, and

Smith went to Gregg’s house to tell Smith to stay away from Babcock. It also included

objections to statements about the events when Gregg and Larry went to the Premises to

try to see the Personal Property. Objections 5 through 7 were based on Krepps’s direct

conversation with Smith about letting Babcock talk to Gregg, that she had Babcock in

“lock-down,” and Krepps’s statement that it was clear Smith was in control of Babcock.

Objections 9 and 10 involved Larry’s declaration. Smith objected on the grounds

of hearsay, lack of personal knowledge, speculation, and lack of foundation. Smith

objected that Larry could not attest to information he overheard about the Personal

Property. Smith also objected to Larry’s conversation with Babcock in which Babcock

claimed that the Premises belonged to Smith and that he could not do anything without

her permission.

10 Objections 11 through 23 involved objections to Gregg’s declaration. Objection

11 involved Gregg’s statement that the declaration was her “solemn testimony to the

following facts” given under penalty of perjury. Objections 12 through 23 involved

statements made by Babcock to Gregg in regard to what Smith would tell him, a text

message from “Ted Spencer” about Smith, discussions Krepps had with Babcock, and

actions taken by Kidder and Smith obtaining a restraining order against Gregg and

showing fellow church members.

Objections 24 through 30 involved Kidder’s declaration. Once again Smith

objected on the grounds of hearsay, lack of personal knowledge, speculation, and lack of

foundation. The objections involved all statements made by Kidder as to her belief that

Smith was controlling Babcock.

Smith also filed a reply to the Opposition. Smith complained the Opposition was

“littered” with unsubstantiated and irrelevant facts; it failed to address the legal issue that

Smith had no control over the Premises where the Personal Property was stored. Smith

argued that plaintiffs had failed to cite to any evidence in their statement of facts.

Further, they failed to provide a separate statement of facts so that Smith could properly

respond to any new material facts presented in the Opposition. Additionally, plaintiffs

had not raised the issues of agency, ratification, or joint venture in the Complaint and

could not raise them in the Opposition without filing an amended complaint.

11

E. TRIAL COURT RULING

The trial court issued a tentative ruling on the Motion. The trial court reviewed

the allegations in the Complaint. The trial court first addressed the evidentiary

objections. It found that a majority of the statements made in the declarations submitted

by Krepps, Gregg, Larry, and Kidder were inadmissible hearsay and/or the declarants

lacked personal knowledge of the facts. It found, “Only [Smith]’s admissions in a

purported phone conversation with Larry are admissible based on his personal knowledge

and as an exception to hearsay. (Evid. Code § 1220.) SUSTAIN as to nos. 1-4, 8-10, 12-

30; OVERRULE as to nos. 5-7, 11.”

The trial court then addressed the negligence/premises liability cause of action. It

first found that premises liability did not appear to apply to the case. Plaintiffs failed to

allege a dangerous or defective condition on the Premises from which they suffered harm.

The elements of negligence were more appropriately applied. The trial court concluded

that plaintiffs could not establish that Smith owed a legal duty to them in regard to the

Personal Property. Smith presented evidence that Babcock had been the sole occupant of

the Premises where the Personal Property was stored since 2015; Smith had no control

over the Personal Property; was not involved in the moving or storage of the Personal

Property; and never exercised control over the Personal Property. Smith never instructed

Babcock as to what he should do with the Personal Property. The trial court relied on the

separate statement provided by Smith.

12 The trial court then addressed whether plaintiffs had presented admissible

evidence to show a triable issue of material fact. The trial court found, “As pointed out

by [Smith], the Opposition is littered with unsubstantiated and irrelevant facts. The only

relevant fact is whether [Smith] had control over Plaintiffs’ Personal Property or

interfered with Plaintiffs’ use of the Personal Property. However, Plaintiffs rely

primarily on purported statements by [Babcock] about [Smith]’s control over him and the

Premises. [Babcock]’s statements constitute inadmissible hearsay and cannot be relied

upon to oppose summary judgment.”

The trial court found that the only relevant evidence presented was Smith’s

statement to Krepps that she refused to allow Babcock to speak with Gregg. Further,

evidence that she obtained a restraining order for herself and Babcock against Gregg.

However, this evidence did not establish that Smith had any control over the Premises or

the Personal Property. It did not show that she blocked access to the Premises. The

evidence only established that Babcock refused Gregg and Larry access to the Premises

and Personal Property. There was no evidence Smith denied access to Gregg.

The trial court also denied the claims of agency, ratification, and joint venture as

they were not properly alleged in the Complaint. Further, there was no evidence

submitted in support of the claims.

As for the cause of action for intentional tort, the trial court found that plaintiffs

failed to allege any underlying tort. They failed to address the issue in the Opposition

and did not seek to amend the Complaint. Further, even if they tried to amend, there was

13 no intentional tort to cover the situation. There was no evidence that Smith had control

over the Personal Property.

On February 7, 2023, the matter was called for hearing and the parties presented

oral argument. The reporter’s transcript has not been provided to this court. The trial

court adopted the tentative ruling and the Motion was granted. Judgment was entered on

February 15, 2023; an amended judgment was filed on March 21, 2023. Smith was

awarded $8,867.02 in costs as the prevailing party. Plaintiffs filed a notice of appeal on

April 15, 2023.

DISCUSSION

On appeal, plaintiffs claim the trial court erred by granting Smith’s evidentiary

objections and that the Motion would not have been granted if the evidence had been

admitted. Further, plaintiffs contend the trial court improperly concluded that they could

not raise the issues of agency, mutual interest, joint venture, and ratification. Finally,

plaintiffs address the introduction of Gregg’s felony conviction for elder abuse.

A. EVIDENTIARY OBJECTIONS

Plaintiffs contend the trial court erred by granting the objections made by Smith to

the evidence presented in the Opposition, specifically the declarations of Krepps, Larry,

Gregg, and Kidder.

There is a split of authority on the proper standard of review of the trial court’s

rulings on evidentiary objections. In Pipitone v. Williams (2016) 244 Cal.App.4th 1437,

the Sixth District Court of Appeal concluded the de novo standard of review applied to

evidentiary rulings “determined on the papers and based on questions of law such as

14 hearsay.” (Id. at p. 1451.) The Pipitone court based its conclusion on Reid v. Google,

Inc. (2010) 50 Cal.4th 512. In Reid, the Supreme Court was presented with evidentiary

objections that had not been ruled on by the trial court. The Reid court applied the de

novo standard of review to evidentiary objections upon which the trial court had failed to

rule. (Reid, at p. 535; see also Doe v. SoftwareONE Inc. (2022) 85 Cal.App.5th 98, 102-

103 (Doe).) The Supreme Court reasoned, “First, because there was no exercise of trial

court discretion, the Court of Appeal had no occasion to determine whether the trial court

abused it. Second, Google expressly invited the Court of Appeal to address its

evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the

general standard of review applicable to summary judgment rulings, that any doubts as to

the propriety of granting a summary judgment motion should be resolved in favor of the

party opposing the motion.” (Reed, at p. 535.) The Supreme Court declined to address

the standard of review in those cases in which the trial court ruled on the evidentiary

objections. (Ibid.)

In Doe, supra, 85 Cal.App.5th 98, the appellate court addressed the question left

unresolved in Reid and found that evidentiary rulings are more properly reviewed for an

abuse of discretion. (Doe, at pp. 103-104; see also Twenty-Nine Palms Enterprises Corp.

v. Bardos (2012) 210 Cal.App.4th 1435, 1447.) The court reasoned, “[T]rial courts

typically rule on evidentiary objections in summary fashion, which often prevents us

from determining the precise nature (i.e., principally legal or factual) of the trial court’s

ruling. And rulings on evidentiary objections often ‘involve trial courts making

15 qualitative and sometimes equitable determinations,’ which are the sort of decisions we

typically review for abuse of discretion.” (Doe, at p. 104.)

We will follow Doe and apply the abuse of discretion standard.

1. LARRY KREPPS

First, plaintiffs insist that Krepps’s narration attached to the Complaint was

attached to the Motion, which somehow resulted in an admission by Smith that it was

properly considered evidence. The narration was similar to Krepps’s declaration attached

to the Opposition. Plaintiffs provide no legal authority for their proposition. By failing

to provide a cogent legal argument, the claim has been forfeited. (United Grand Corp. v.

Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United) [“ ‘In order to

demonstrate error, an appellant must supply the reviewing court with some cogent

argument supported by legal analysis and citation to the record’ ”].)

Second, plaintiffs contend the trial court erred by sustaining Objections 1 through

4, and 8 to Krepps’s declaration. The trial court found that the conversations between

Gregg and Smith about Babcock attested to by Krepps were properly objected to on the

grounds of hearsay and lack of personal knowledge. Krepps also referred to Babcock’s

arrangement with Mary to stay in the Premises and the events when Gregg and Larry

went to the Premises.

“ ‘ “Hearsay evidence” is evidence of a statement that was made other than by a

witness while testifying at the hearing and that is offered to prove the truth of the matter

stated.’ [Citation.] In other words, ‘a hearsay statement is one in which a person makes a

factual assertion out of court and the proponent seeks to rely on the statement to prove

16 that assertion is true.’ ” (Doe, supra, 85 Cal.App.5th at p. 108.) Krepps was not present

during the above discussions. He lacked personal knowledge of the conversations; it was

clearly hearsay.

Plaintiffs appear to claim that despite Krepps reporting “what he learned from

others, which was certainly hearsay,” the evidence was admissible based on his personal

knowledge and working with the parties in the Foundation and as a church leader. They

provide no legal authority for their claim that his personal knowledge of the parties is an

exception to the hearsay rule, and have waived such claim. (United, supra, 36

Cal.App.5th at p. 146.)

Objections 5 through 7 were based on Krepps’s conversation directly with Smith

about letting Babcock talk to Gregg, and that she was in control of Babcock. The trial

court did not exclude this evidence; no error occurred as to this evidence.

2. LARRY GREGG

Objections 9 and 10 involved Larry’s declaration. Smith objected that Larry could

not attest to information he “overheard” about the Personal Property. Smith also objected

to Larry’s conversation with Babcock in which Babcock claimed that the Premises

belonged to Smith and that he could not do anything without her permission. Plaintiffs

acknowledge that this was hearsay but that an exception applies. While plaintiffs discuss

different exceptions, they do not delineate the applicable exception in their argument.

17 Such failure to specify the legal basis in their argument forfeits the claim on appeal.5

(United, supra, 36 Cal.App.5th at p. 146.)

3. ANDREA GREGG

Objections 11 through 23 involved objections to Gregg’s declaration. Objection

11 involved Gregg’s statement that the declaration was her “solemn testimony to the

following facts” given under penalty of perjury. The trial court overruled this objection.

Objections 12 through 23 involved statements made by Babcock to Gregg in regards to

what Smith would tell him, a text message from “Ted Spencer” about Smith, discussions

Krepps had with Babcock, actions taken by Kidder, and Smith obtaining a restraining

order against her and showing their fellow church members. Much of this statement was

based on hearsay, lack of personal knowledge, and speculation.

Once again, plaintiffs do not provide the hearsay exceptions for the statements

made by Gregg, of which a majority involved information she obtained from other

sources. These statements were hearsay and she does not provide an exception. The

failure to provide any legal authority or analysis forfeits any claim on appeal. (United,

supra, 36 Cal.App.5th at p. 146.)

5 For the first time in the reply brief, plaintiffs address some of the exceptions to the hearsay rule as it applied to the declarations attached to the Opposition. We generally do not consider claims raised for the first time in the reply brief. (People v. Peevy (1998) 17 Cal.4th 1184, 1206.) Plaintiffs were well aware of the hearsay issue at the time of the filing of their opening brief and should have raised the exceptions to give Smith an opportunity to respond.

18 4. CHRISTINE KIDDER

Objections 24 through 30 involved statements made by Kidder. Once again Smith

objected on the grounds of hearsay, lack of personal knowledge, speculation, and lack of

foundation. The objections involved the statements made by Kidder that involved her

belief that Smith was controlling Babcock. These included statements that since he could

not fly to Texas, Smith was controlling Babcock. Further, Smith objected to statements

she knew that Gregg was never allowed on the Premises to retrieve her items. Kidder did

not explain how she knew this information. These statements involve hearsay, lack

foundation as there is no time period included, and are based on speculation.

Plaintiffs refer to lay opinion testimony of a witness but do not provide proper

argument or authority on how this was applicable to the speculative statements made by

Kidder. The remainder of Kidder’s statements rely on statements made to her by other

parties. This was properly excluded as hearsay. Plaintiffs do not provide any argument

as to the hearsay exception applicable, waiving the claim on appeal. (United, supra, 36

Cal.App.5th at p. 146.)

Based on the preceding, the trial court did not abuse its discretion by sustaining

the evidentiary objections raised by Smith.

B. MERITS OF THE MOTION

Even if the trial court improperly ruled on the evidentiary objections in this case,

admission of the testimony would not result in a more favorable outcome for plaintiffs.

“[A]n erroneous evidentiary ruling requires reversal only if ‘there is a reasonable

probability that a result more favorable to the appealing party would have been reached in

19 the absence of the error.” ’ ” (Twenty-Nine Palms Enterprises Corp. v. Bardos, supra,

210 Cal.App.4th at p. 1449.)

“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.’ ” (Luebke v. Automobile Club of

Southern California (2020) 59 Cal.App.5th 694, 702, fn. omitted.) “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. [Citation.] 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.’ ” (Id. at pp. 702-703)

“We review a grant of summary judgment de novo.” (Luebke v. Automobile Club

of Southern California, supra, 59 Cal.App.5th at p. 703.) “ ‘We independently review

the parties’ papers supporting and opposing the motion, using the same method of

analysis as the trial court. Essentially, we assume the role of the trial court and apply the

same rules and standards.’ ” (Apex Solutions, Inc. v. Falls Lake Ins. Management Co.,

Inc. (2024) 100 Cal.App.5th 1249, 1256.)

In the Complaint, plaintiffs presented three causes of action that included

negligence, premises liability, and intentional tort. “The elements of a negligence cause

of action are 1) the existence of a duty, 2) a breach of that duty, 3) injury to the plaintiff

20 caused by the defendant’s breach, and 4) actual damages.” (Romero v. Los Angeles Rams

(2023) 91 Cal.App.5th 562, 567.) “ ‘ “The elements of a cause of action for premises

liability are the same as those for negligence.” ’ ” (Nicoletti v. Kest (2023) 97

Cal.App.5th 140, 145.) “ ‘Since the existence of a duty of care is an essential element in

any assessment of liability for negligence [citations], entry of summary judgment in favor

of the defendant in a negligence action is proper where the plaintiff is unable to show that

the defendant owed such a duty of care.’ ” (Walker v. Sonora Regional Medical Center

(2012) 202 Cal.App.4th 948, 958.)

Here, the Complaint alleged that Smith had a duty to protect the Personal Property

stored on the Premises. The Motion presented that Smith had no control over the

Premises or Personal Property and could not have foreseen that it would be damaged or

removed by Babcock. Babcock had control over the Premises until he remarried. He

took responsibility for the Personal Property. Smith declared that she had no control over

the Premises and never exercised any control over the Personal Property. Smith met her

initial burden of showing that she owed no legal duty to plaintiffs.

The evidence that was presented in the Opposition, including the evidence

excluded, did not establish there was a triable issue of fact as to whether Smith had any

control over the Premises or the Personal Property. The evidence may have shown that

Smith had some control over Babcock’s finances, but it did not establish that this

extended to the Premises or the Personal Property. The will provided showed that

Babcock was in control of the Premises until he remarried. None of the evidence

presented showed that Smith had taken over control of the Premises other than Babcock’s

21 statement that Smith would not allow him to let Gregg into the Premises because she was

in control of him. There was no explanation as to how Smith had taken over the Premises

when Babcock had full control under Mary’s will.

Further, there was no evidence that Smith personally blocked access to the

Premises so that Gregg could not retrieve her Personal Property. Moreover, Babcock let

Gregg access the Premises. Smith was not involved in the removal of the Property. If

Krepps’s statement is considered, Babcock told Krepps that he took the Personal Property

out of the garage and trailer. No evidence was presented that Smith had any knowledge

or control over Babcock removing the Personal Property. The trial court properly

concluded there was no triable issue of fact as to duty to support the premises liability

and negligence causes of action.

Further, as to the cause of action of intentional tort, there was no allegation of a

tort in the Complaint. Plaintiffs alleged that there was a cause of action of intentional tort

and referred to the narrative provided by Krepps. In the narrative, Krepps never refers to

an intentional tort. “Because summary judgment is defined by the material allegations in

the pleadings, we first look to the pleadings to identify the elements of the causes of

action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151,

159.) A tort, whether intentional or negligent, involves a violation of a legal duty owed

by the defendant to the person injured. (Long Beach Memorial Center v. Kaiser

Foundation Health Plan, Inc. (2021) 71 Cal.App.5th 323, 336.)

22 As stated, there was no intentional tort identified in the pleadings. Further, as set

forth, ante, there was no evidence of a duty of Smith to protect the Personal Property

even considering that she may have exercised some control over Babcock. Since there

was no triable issue of fact on the causes of action of negligence, premises liability and

intentional tort, summary judgment was properly granted.

C. AGENCY, MUTUAL INTEREST, RATIFICATION AND JOINT

VENTURE

Plaintiffs contend that the trial court’s ruling is “false” in finding that the claims of

agency, mutual interest, ratification, and joint venture were not alleged in the Complaint

and were not proper grounds upon which to oppose the Motion.

“ ‘The pleadings delimit the issues to be considered on a motion for summary

judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment

need address only the issues raised by the complaint; the plaintiff cannot bring up new,

unpleaded issues in his or her opposing papers.’ ” (Laabs v. City of Victorville (2008)

163 Cal.App.4th 1242, 1253; see also Whelihan v. Espinoza (2003) 110 Cal.App.4th

1566, 1576.) “To create a triable issue of material fact, the opposition evidence must be

directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence

would show some factual assertion, legal theory, defense or claim not yet pleaded, that

party should seek leave to amend the pleadings before the hearing on the summary

judgment motion.” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; see

also Laabs, at p. 1253.)

23 It is without dispute that plaintiffs only alleged the causes of action of negligence,

premises liability, and intentional tort in the Complaint and they never sought to amend

the Complaint. The Complaint and narration never presented claims of agency,

ratification, mutual interest, or joint venture. The trial court properly concluded that the

Motion could not be denied on issues not raised by the pleadings.

Plaintiffs argue on appeal that they in fact alleged agency in the form Complaint.

In paragraph 6 of the Complaint, it was stated, “The true names of defendants sued as

Does are unknown to plaintiff.” They then checked the box, “Doe defendants (specify

Doe numbers): 1 to 100 were the agents or employees of other named defendants and

acted within the scope of that agency or employment.” Also checked the box, “Doe

defendants (specific Doe Numbers):_______ are persons whose capacities are unknown

to plaintiff.”

This paragraph does not apply to Smith or Babcock as suggested by plaintiffs.

Smith was not named as a Doe. Further, the Complaint did not allege agency, mutual

interest, ratification, or joint venture as causes of action. Plaintiffs never amended to add

these claims prior to the hearing on the Motion. It is unknown if they sought to amend at

the hearing because the record of the proceedings has not been provided to this court.

The trial court properly granted the Motion finding these claims were not properly raised

in the Complaint.

D. CRIMINAL CONVICTION

Plaintiffs raise a claim in regards to the consideration of the criminal conviction

for elder abuse against Gregg that was reviewed by the trial court. They entitle the claim

24 as “Summary of Evidence—Even For Felons” At one point in their argument, it appears

that they are arguing the trial court should not have considered the criminal conviction.

However, they also appear to argue that it was further evidence of Smith’s control over

Babcock. This court cannot discern what claim plaintiffs are raising. “ ‘[T]o

demonstrate error, an appellant must supply the reviewing court with some cogent

argument supported by legal analysis and citation to the record.’ ” (Hernandez v. First

Student, Inc. (2019) 37 Cal.App.5th 270, 277.) We cannot discern the argument raised by

plaintiffs and do not address the claim.

DISPOSITION

We affirm the trial court’s order granting the motion for summary judgment.

Smith shall recover her costs on appeal as the prevailing party.

CERTIFIED FOR PUBLICATION

MILLER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

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