Judge Armen Tamzarian, Case Number: 21STCV41849, Date: 2024-05-14 Tentative Ruling

Judge: Armen Tamzarian, Case: 21STCV41849, Date: 2024-05-14 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 21STCV41849 Hearing Date: May 14, 2024 Dept: 52

Tentative Ruling:

Plaintiff High Note, Inc.’s Motion for Summary Adjudication

Plaintiff High Note, Inc. moves for summary adjudication of four issues.

Evidentiary Objections

Defendant makes 11 objections to plaintiff’s evidence. All 11 objections are overruled.

Legal Standard for Summary Adjudication

Code of Civil Procedure section 437c(f)(1) provides, “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” “The court must ‘grant[ ]’ the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ [citation]—that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Issue 1:

Plaintiff moves for summary adjudication of the following issue: “Defendant … owed a duty to provide security services and to secure Plaintiff’s location.” (Notice of Motion, p. 2.) That is an “issue of duty” subject to summary adjudication under Code of Civil Procedure section 437c(f)(1). (See Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 518-519; Transamerica Ins. Co. v. Superior Court (1994) 29 Cal.App.4th 1705, 1713.)

In their papers, the parties dispute whether defendant had a duty to provide one or two security guards at the time of the burglary. Plaintiff did not specifically move for summary adjudication on that issue. The notice of motion identifies Issue No. 1 as “Defendant … owed a duty to provide security services and to secure Plaintiff’s location.” The court will therefore rule on that issue of duty, precisely as plaintiff stated it in the notice of motion.

Plaintiff establishes it is entitled to summary adjudication on Issue No. 1. “The existence of duty is a question of law for the court to determine.” (Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App.5th 586, 593.) “A ‘ duty may arise through statute, contract, or the relationship of the parties.’ ” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920.)

There is no genuine dispute of the following material facts: plaintiff contracted with defendant to provide at least one armed security guard at a cannabis dispensary. (UMF Nos. 1, 3.) While that contract was in effect, burglars stole a safe and cannabis from the dispensary. (UMF No. 9.) Defendant attempts to dispute some of the nuances of these facts as stated in plaintiff’s separate statement, such as the number of guards required. But defendant shows no genuine dispute or triable issue as to the material facts that establish the issue of duty. Based on these undisputed facts, plaintiff shows that defendant had a duty to provide security services and secure plaintiff’s location. There is no issue requiring a trial as to any fact material to the existence of that duty.

A security company’s duty to provide security services and secure a location is about as simple an issue of duty as possible. In Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, a customer at a convenience store attacked the cashier. (Id. at p. 286.) The cashier sued the store’s security service provider for negligence. (Ibid.) “Under its contract, [defendant] was required to provide armed, uniformed security guards.” (Id. at p. 287.) The court stated, “We note that the harm that befell [plaintiff] was precisely the kind of harm that [defendant] was there to prevent, i.e., an assault on a store employee.” (Ibid.)

The same reasoning applies here. Plaintiff’s harm was theft. Theft is a quintessential form of harm that a security provider is hired to prevent. Plaintiff meets its burden of establishing Issue No. 1: that defendant “owed a duty to provide security services and to secure Plaintiff’s location.” (Notice of Motion, p. 2.)

Issue 2-4:

Plaintiff also moves for summary adjudication of three more issues. None of them are issues subject to summary adjudication. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) Issues 2, 3, and 4 are not affirmative defenses, claims for damages, or issues of duty. The court therefore can only grant summary adjudication if the motion would completely dispose of a cause of action.

Issue No. 2 states: “Defendant breached its duty to Plaintiff by failing to provide security services on the early morning of December 8, 2019 when Plaintiff’s location was burgled.” (Notice of Motion, p. 2.) The court cannot summarily adjudicate that issue. “A plaintiff may seek summary adjudication on the existence or nonexistence of a contractual duty [citation], but there is simply no statutory basis for an order summarily adjudicating that a party breached a duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 244.) This issue is merely one element of some of plaintiff’s causes of action. Resolving it in plaintiff’s favor would not completely dispose of an entire cause of action.

Issue No. 3 states: “Defendant’s failure to provide said security services was the proximate cause of Plaintiff’s damage.” (Notice of Motion, p. 2.) That is also not an issue subject to summary adjudication. Again, that is merely one element of a cause of action. Resolving it in plaintiff’s favor would not completely dispose of an entire cause of action.

Issue No. 4 states: “Defendant is liable to Plaintiff for breach of contract.” (Notice of Motion, p. 2.) The court cannot summarily adjudicate the issue of liability. “Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability.” (Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097.) When “issues of the calculation of damages … remain to be determined, it is not appropriate to grant summary judgment” or summary adjudication. (Ibid.) Resolving this issue would not completely dispose of an entire cause of action.

Even resolving all issues in plaintiff’s favor would not completely dispose of an entire cause of action. When damages are an element of the cause of action, the moving plaintiff must establish “both the fact and the amount of damages.” (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106.) Damages are an element of plaintiff’s causes of action. Plaintiff’s motion does not purport to establish the amount of damages. The reply brief acknowledges, “This Motion does not seek adjudication of damages.” (Reply, p. 6.)

Disposition

Plaintiff High Note, Inc.’s motion for summary adjudication is granted in part. The court hereby grants summary adjudication of Issue No. 1: Defendant Frontline Protection, Inc. owed a duty to provide security services and to secure Plaintiff’s location. The court denies summary adjudication of Issue Nos. 2, 3, and 4.