Judge: Colin Leis, Case: 22STCV13373, Date: 2025-02-13 Tentative Ruling

Case Number: 22STCV13373    Hearing Date: February 13, 2025    Dept: 74

Greene et al. v. Dollar Tree Stores, Inc et al.

Defendant RP Reality Partners, LLC Motion for Summary Judgment

BACKGROUND 

This motion arises from a negligence and wrongful death action.

Plaintiff Jerome S. Greene, by his successor-in-interest Francine Greene, (Decedent) filed a complaint against defendants Dollar Tree Stores, Inc; RP Realty Partners, LLC; RPD Catalyst, LLC; RPD Catalyst II, LLC; Security 1; RPD Property Management Company, LLC; and Rubin Pachulski Properties 36, LLC.  Decedent alleges three causes of action: (1) Negligence, (2) Premises Liability, and (3) Negligence (Wrongful Death).

Defendant RP Realty Partners, LLC (Defendant) move for summary judgment, or in the alternative summary adjudication,  

The court takes judicial notice that exhibits 6-8 exist but not of the truth of their contents.

Defendant’s Evidentiary objections are sustained to 4, 6, and 16 of the Peterson Declaration. All other objections are preserved.

DISCUSSION

            The elements of a negligence cause of action are (1) defendant has a legal duty owed to plaintiff to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff.  Parties dispute whether RP Realty breached its duty and whether intervening conduct cut off Defendant’s liability.  

Duty

            Businesses have a duty to patrons to maintain their premises in a reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.)  This includes taking reasonable steps to secure common areas against foreseeable criminal acts.  (Ibid.)  Defendant argues that it did not owe a duty to Decedent to protect him from the attack because it was not foreseeable.  Foreseeable conduct is that which the proprietor has “reasonable cause to anticipate such acts and the probability of injury.”  (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.)  The scope of the duty considers the level of foreseeability.  (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243.) To establish the foreseeability of criminal conduct, the court considers prior similar incidents.  (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1208.) 

            In support of its motion, Defendant asserts the following evidence that, according to Defendant, made the incident as a matter of law unforeseeable: In the five years preceding the incident, there was no increase in criminal activity in the La Cienega-Sawyer Plaza (the Plaza).  (UMF No. 14.); Security 1 never told Defendant that additional security was needed.  (UMF No. 15.); and, for the last seven years, there had been no random violence against any Dollar Tree patrons.  (UMF No. 20.) The foregoing evidence satisfies Defendant’s initial burden of showing that the incident was not foreseeable. 

            In response, Decedent provides evidence that there had been increased violence and threats of violence leading up to the incident, including a robbery with a machete.  (PUMF No. 10, 17.) Additionally, Decedent’s opposition presents numerous similar acts of violence committed against patrons of the Plaza. The incident’s foreseeability is therefore a triable issue.

            Breach

            A breach of duty is typically a question for the jury.  (Constance B. v. State of Cal. (1986) 178 Cal.App.3d 200, 207.)  Breach occurs when the defendant fails to meet the legal standard of care required for the protection of others.  (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 396-97.)  The degree of duty owed to the Decedent is, in part, determined by the “balancing of the ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and efficacy, of the proposed security measures. [citations omitted.]”  (Dalgado, supra, 36 Cal.4th at pp. 238.)  Defendant argues that it was not required to take minimally burdensome actions to protect Decedent because it did not have any knowledge of the danger to patrons.  As discussed above, the foreseeability of the incident remains a triable issue. 

            Causation

            Causation requires that Defendant’s actions are the legal cause of the harm.  Like breach, causation is typically a factual dispute left to jury.  (Nola M. v. Univ. of So. Cal. (1993) 16 Cal.App.4th 421, 428.)  Typically, causation requires that the defendant’s conduct was a ‘substantial factor’ in bringing about the harm.  When there is a duty to protect from third-party conduct, the third-party’s conduct may not be considered a superseding cause if there is a “realizable likelihood that a third person may act in a particular manner.”  (Richardson v. Ham (1955) 44 Cal.2d 772, 777.)  The question is whether the “same harm, both in character and extent, would have been sustained even had the actor taken the required precautions,” if so, then the failure to do so cannot be the legal cause.  (Nola M., supra, 16 Cal.App.4th at pp. 433-34.)

            According to the evidence Defendant submits, Decedent was shopping at Dollar Tree when he inadvertently cut in front of Nicholas Gill (Gill).  (UMF Nos. 1, 2.)  Defendant alleges that Decedent’s attack was quick and completely random. That allegation, which Defendant does not establish in its separate statement, is a triable issue.  The Court finds that Defendant’s evidence does not show that taking precaution would not have changed the character or extent of Decedent’s injury.  Therefore, the Defendant has not met its initial burden in establishing that no triable issue of material fact remains regarding causation.

            Intervening Conduct

            Finally, Defendants argue that Gill’s conduct was an intervening cause of Decedent’s death.  A superseding cause is one that is “highly unusual or extraordinary that the occurrence was not likely to happen and therefore was not foreseeable.”  A criminal act is often a superseding cause even if negligent conduct created the situation which provided an opportunity for the third party to commit the act.  (Kan v. Hartford Accident & Indemn. Co. (1979) 96 Cal.App.3d 350, 360.)  However, criminal conduct is not automatically a superseding cause.  (Vaquez v. Residential Invest., Inc. (2004) 118 Cal.App.4th 269, 289.)  If the duty owed to the plaintiff was to protect from the hazard of being harmed by the intervening force, then that hazard is within the duty, and therefore not a superseding cause. 

            As above, the Court finds that a triable issue of material fact remains whether Gill’s conduct was reasonably foreseeable.  Therefore, Gill’s criminal act is not automatically a superseding cause. Therefore, Defendant has not met its burden in establishing that Gill’s conduct was a superseding act cutting off negligence liability. 

CONCLUSION

            The Court denies Defendant’s motion for summary judgment, and in the alternative, summary adjudication.