Judge: Anne Hwang, Case: 22STCV28910, Date: 2024-08-12 Tentative Ruling

Case Number: 22STCV28910    Hearing Date: August 12, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.     Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

2.     Separate Statement of Undisputed Material Facts

3.     Compendium of Evidence in Support

4.     Notice of Lodging in Support

OPPOSITION PAPERS

1.     Plaintiffs’ Memorandum of Points and Authorities in Opposition

2.     Plaintiffs’ Response to Defendant’s Separate Statement

3.     Plaintiffs’ Evidentiary Objections

4.     Plaintiffs’ Evidence in Opposition

5.     Plaintiffs’ Notice of Lodging in Support

REPLY PAPERS

1.     Reply; Declarations of Carlos Ocegueda, Mike Bowers, Karen Venegas, and Robert Esparza

2.     Defendant’s Response to Plaintiff’s Additional Material Facts

3.     Defendant’s Response to Plaintiff’s Evidentiary Objections

4.     Defendant’s Evidentiary Objections to Plaintiff’s Evidence

BACKGROUND

On September 6, 2022, Plaintiffs Martin Sanchez Jr., Elizabeth Christine Trujillo, Liam Martin Sanchez filed a complaint against Defendant Northgate Gonzalez, LLC. On December 19, 2023, Plaintiff Ismael Alvarado filed a complaint against Northgate Gonzalez, LLC

On January 31, 2024, the Court consolidated both cases for all purposes. (Min. Order, 1/31/24.)

Both complaints allege injuries based on an incident that occurred on March 8, 2022 at a Northgate grocery store at 11660 Firestone Boulevard, Norwalk. Plaintiffs allege that Rafael Colon Jr. (“Colon”) struck Martin Sanchez Jr. and Ismael Alvarado while they were patrons. Against Northgate Gonzalez, LLC, Plaintiffs assert causes of action for negligence and premises liability. Plaintiffs Elizabeth Christine Trujillo and Liam Martin Sanchez also assert a negligent infliction of emotional distress cause of action, alleging they witnessed the attack on Martin Sanchez Jr. and are his wife and child respectively. (Complaint ¶ 65.) Elizabeth Christine Trujillo also asserts a loss of consortium cause of action.

Defendant Northgate Gonzalez, LLC (“Defendant”) now moves for summary judgment, arguing that Plaintiffs cannot establish that it breached its duty and cannot establish causation.[1] Plaintiffs Martin Sanchez Jr., Elizabeth Christine Trujillo, Liam Martin Sanchez & Ismael Alvarado (“Plaintiffs”) oppose and Defendant replies.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)                   

EVIDENTIARY OBJECTIONS

Defendant’s Objections:

1.     Sustained.

2.     Sustained.

3.     Sustained.

4.     Overruled.

5.     Overruled.

6.     Overruled.

7.     Sustained as to how fellow cashiers felt, but otherwise overruled.

8.     Sustained.

9.     Sustained.

10.  Sustained.

11.  Sustained.

12.  Sustained.

13.  Sustained.

14.  Overruled, to the extent that the statement merely states the materials on which Mr. Withrow relied.

15.  Sustained.

16.  Sustained, to the extent that the opinion is based on inadmissible reports and states legal conclusions.

17.  Sustained, to the extent that the opinion is based on inadmissible reports and states legal conclusions.

Plaintiff’s Objections:

1.     Overruled.

2.     Overruled.

3.     Overruled. (See Forest Lawn Memorial-Park Ass’n v. Superior Court (2021) 70 Cal.App.5th 1, 8 [“A statement lacks foundation if no jury could reasonably find that the witness has personal knowledge of the matter.”] [Citation and alterations omitted, emphasis in original.].)

4.     Overruled.

The Court declines to rule on the remainder of the objections as the evidence has no effect on the ruling herein.

DISCUSSION

Negligence and Premises Liability

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

 “A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use. [Citation.] To establish an owner's liability for negligence, the plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

A. Criminal Conduct of Third Parties

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].) Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.) 

Traditionally, foreseeability of the risk does not necessarily turn on whether the same type of activity or event already occurred on the premises.¿ Rather, the issue is whether, in light of all the facts and circumstances (including the nature, condition and location of the premises, as well as the landlord's prior experience), the owner had reason to anticipate the general character of the event or harm, not its precise nature or manner of occurrence.¿ (Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 129.)¿ However, where a “burdensome” duty is to be imposed on the landowner (e.g., requiring private security guards or other heightened security measures), a “high degree of foreseeability” is required. And “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises.”¿ (Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 679.)¿¿

            Here, it is undisputed that Plaintiffs Sanchez and Alvarado were struck by a store patron, Colon, while on Defendant’s premises. (UMF 2.) Mr. Colon went directly to the area where Mr. Alvarado was waiting in line to check out.  At 7:28 and 35 seconds, only 3 seconds after entering the store, Mr. Colon first appears by the check stands where Mr. Alvarado is waiting to check out. (UMF 4.) Seven seconds later, at 7:28 and 42 seconds, Mr. Colon can be seen hitting Mr. Alvarado. At this time, Mr. Colon has been in the store only 10 seconds. (UMF 5.) Mr. Colon then turns to leave and encounters Mr. Sanchez at the door of the store at 7:28 and 52 seconds.  He took the same 10 seconds to exit and assault Mr. Sanchez as he did to enter and assault Mr. Alvarado. (UMF 6.) Mr. Colon then leaves at 7:28 and 54 seconds. (UMF 7.)

Defendant argues it did not breach any duty because it could not anticipate the attacks. Defendant offers the following additional facts:

-        Although known at Northgate's store, Mr. Colon had never been known to engage in violence at the store. (UMF 9.)

-        There had never been an incidence of anyone being struck at this store, by anybody. (UMF 10.)

-        The subject store not in a high-risk area which required constant on-premises guards. (UMF 11.)

-        There was nothing to put Northgate on notice that a violent incident could, or was likely, to occur on the premises. (UMF 12.)

Defendant’s evidence of prior knowledge of Colon and previous violence at the store is based on the declaration of Robert Esparza, who is the Senior Manager of Asset Protection. Plaintiffs argue the declaration lacks foundation. In reply, Defendant produces a new declaration by Robert Esparza stating these assertions were based on “store employees during our investigation, either in person or via email thread,” and the records in Defendant’s “Asset Protection”, where incidents are reported.[2] (Reply, Esparza Decl. ¶ 4-5.)

In opposition, Plaintiff presents the declaration of Jennifer Catalan, wherein she states: “I recognize Rafael Colon, Jr. as a previous customer.  I recall him being involved in a fight at Northgate Norwalk with another customer prior to the March 8, 2022 incident.” (Catalan Decl. ¶ 7.) She further declares that she has witnessed a fellow cashier attacked by a patron. (Id. ¶ 5.)

Even if Esparza’s conclusory supplemental declaration, which contains little specificity and which appears to rely on out-of-court statements by other unspecified individuals and records,[3] were sufficient to meet Defendant’s burden, Plaintiffs have produced sufficient evidence to create a triable issue of material fact. Plaintiffs have produced evidence from Defendant’s former employee that the same individual was previously involved in a fight with another customer. Accordingly, there remains a triable issue of fact regarding whether Defendant had prior knowledge of Colon’s violent propensity and of physical attacks in the store.

            B. Causation

Next, Defendant argues that Plaintiffs cannot establish that hiring security guards would have prevented the attack.

“ ‘[T]he decision whether that breach caused the damage (that is, causation in fact) is again within the jury’s domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”) [italics in original].)¿Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) “In other words, [the] plaintiff must show some substantial link or nexus between omission and injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)¿¿In Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, which involved a mass shooting at a restaurant, the court reasoned that “it cannot be reasonably urged that had McDonald's provided an unarmed, uniformed licensed security guard, the massacre would have been prevented or its extent diminished.” (Id. at 516.)

Plaintiff argues that a security guard could have prevented Colon’s entry based on prior knowledge of Colon. (Opposition at p. 2.) Based on the evidence presented, and construing reasonable inferences in favor of Plaintiffs, the Court finds a triable issue of fact regarding whether the presence of a security guard would have deterred criminal acts, or prevented the incident in this case from occurring.

Lastly, because there is a triable issue of fact regarding negligence, Defendant fails to meet its burden regarding the negligent infliction of emotional distress cause of action. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129 [“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ”].)

In light of the ruling herein, where the Court denies the motion for summary judgment, the Court declines to rule on Plaintiff’s request to shift the burden on summary judgment.[4]

CONCLUSION AND ORDER

Based on the foregoing, Defendant Northgate Gonzalez, LLC’s Motion for Summary Judgment is DENIED.

Defendant shall give notice of the Court’s order and file a proof of service of such.