Judge: Cynthia A Freeland, Case: 37-2022-00001150-CU-PO-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00001150-CU-PO-NC ROBINSON VS 99 CENTS ONLY STORES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/28/2023

Defendants Monro Capital, Inc. ('Monro Capital')'s and Monro-Mission Square, LLC ('Monro-Mission')'s motion for summary judgment, to which Defendant 99 Cents Only Stores, LLC ('99COS') has submitted a joinder (see ROA Nos. 61-64), is denied.

Initial Considerations 99COS's request for judicial notice of Plaintiffs' Complaint and Mr. Lilien's declaration is granted. See Cal. Evid. Code § 452(d). However, the court does not take judicial notice of the truth of the contents of those documents. See People v. Woodell (1998) 17 Cal. 4th 448, 455; Oh v. Teachers Insurance and Annuity Association of America (2020) 53 Cal. App. 5th 71, 80-81.

Plaintiffs Blake Robinson, Brianna Robinson by and through her Guardian ad Litem Kacie Robinson, Broderick Robinson by and through his Guardian ad Litem Yadira Sandoval, and the Administrator of the Estate of Michael Robinson (collectively, 'Plaintiffs')'s objections to Mr. Lilien's declaration are sustained. Plaintiffs' also have objected to 99COS's joinder in support of the motion. However, Plaintiffs fail to clearly allege on what grounds they have objected to the joinder, other than the general argument that the joinder should be denied because 99COS has not demonstrated entitlement to judgment as a matter of law. This is grounds for an opposition, rather than an objection, to the joinder. Consequently, to the extent Plaintiffs have 'objected' to the joinder, such objection is overruled.

To the extent that 99COS and Plaintiffs have asserted evidentiary objections in their respective Separate Statements, aside from what the court has identified above, such objections are overruled as being not Code-compliant. Evidentiary objections must be submitted either: (1) in writing under California Rules of Court ('CRC'), Rule 3.1354, or (2) at the hearing in the presence of a court reporter. See Cal. R. Ct.

3.1352. CRC, Rule 3.1354(b) makes clear that evidentiary objections 'must be served and filed separately from the other papers in support of or in opposition to the motion.' Cal. R. Ct. 3.1354(b).

While specific evidentiary objections must be referenced in the right column of the separate statement, it is insufficient to merely restate or reargue such objections in a separate statement in the absence of separately filed and served written objections. Ibid.

Factual Background and Procedural History This is a wrongful death and survivor action arising from an assault and battery incident. In August 2019, Monro-Mission purchased The Mission Square Shopping Center ('Mission Square'). Mission Square is approximately 162,000 square feet and consists of 28 separate businesses offering services, shopping, Calendar No.: Event ID:  TENTATIVE RULINGS

3066146 CASE NUMBER: CASE TITLE:  ROBINSON VS 99 CENTS ONLY STORES LLC [IMAGED]  37-2022-00001150-CU-PO-NC and restaurants. Monro Capital is Monro-Mission's agent and property manager. At the time Monro-Mission purchased Mission Square, the previous owner had contracted with SecureNet to provide security for the Property. Monro-Mission maintained that contract. The scope of SecureNet's duty was to provide a security guard who patrolled the entire premises, i.e., not just specific stores, on foot on a routine basis. On January 11, 2020, Michael Robinson ('Mr. Robinson') was in front of the Property, next to the shopping cart area and the Wells Fargo ATM, when he was attacked from behind, without provocation, by Wayne Jones ('Mr. Jones'). Mr. Jones attacked Mr. Robinson with an object that has been described as either a baseball bat or a three-foot-long wooden dowel. Mr. Robinson died of his injuries five days later. Mr. Jones subsequently was convicted of Mr. Robinson's murder. David Estrada, a detective with the Oceanside Police Department, investigated the murder. Detective Estrada testified that there was no evidence that Mr. Robinson and Mr. Jones knew each other before the incident.

On January 11, 2022, Plaintiffs commenced this action by filing a Complaint against Monro-Mission, Monro Capital, and 99COS sounding in negligence and asserting wrongful death and survivor claims.

See ROA No. 1. The Complaint alleges that 99COS, Monro-Mission, and Monro Capital had a non-delegable duty to maintain the Property in a safe condition for its patrons, including Mr. Robinson, and to avoid a foreseeable risk of violence and/or criminal conduct by third parties. 99COS, Monro-Mission, and Monro breached that duty notwithstanding knowledge of an increasing presence of violent criminal activity taking place at the Property and the need for additional security measures. The Complaint alleges that 99COS, Monro-Mission, and Monro Capital improperly hired trained, managed, and/or supervised their employees and knew, or through the exercise of reasonable diligence should have known, that their employees failed to protect patrons, including Mr. Robinson, from violent crime on the Property. The Complaint further alleges that the attack on Mr. Robinson could have been avoided if 99COS, Monro-Mission, and Monro Capital had not allowed a dangerous and hazardous condition to persist on the Property. 99 COS, Monro-Mission, and Monro Capital now seek summary judgment on the entire Complaint.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of 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. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

99COS's, Monro-Mission's, and Monro Capital's motion for summary judgment is denied. To prevail on a wrongful death claim, a plaintiff must prove: '(1) a wrongful act or neglect on the part of one or more persons [(that is, negligence)] that (2) cause[s] the death of [another] person.' Musgrove v. Silver (2022) 82 Cal. App. 5th 694, 705 (quoting Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 390). 'Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the Calendar No.: Event ID:  TENTATIVE RULINGS

3066146 CASE NUMBER: CASE TITLE:  ROBINSON VS 99 CENTS ONLY STORES LLC [IMAGED]  37-2022-00001150-CU-PO-NC decedent before death but, by statute, survives that event. The survival statutes do not create a cause of action. Rather, '[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.'' Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1265 (quoting Grant v. McAuliffe (1953) 41 Cal. 2d 859, 864). 'To succeed in a negligence action, a plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.' Thomas v. Stenberg (2012) 206 Cal. App. 4th 654, 662.

The court finds that summary judgment is not appropriate owing to triable issues of material fact as to: (1) the scope of the legal duty 99COS, Monro-Mission, and Monro Capital owed Mr. Robinson, and (2) whether an alleged breach of that duty proximately or legally caused Mr. Robinson's death. The court addresses each issue in turn.

The Scope of the Legal Duty of Care As a general rule, '[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.' Cal. Civ. Code § 1714(a). California Civil Code ('CC') § 1714(a) 'establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.' Vasilenko v. Grace Family Church (2017) 3 Cal. 5th 1077, 1083. Notwithstanding CC § 1714(a)'s general prescription, 'it is also well established that, as a general matter, there is no duty to act to protect others from the conduct of third parties.' Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 235. Courts have recognized exceptions to the general 'no-duty-to-protect rule' including, in pertinent part, instances in which the plaintiff and defendant have a 'special relationship' with one another. Ibid.

One such special relationship has been found 'in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.' Morris v. De La Torre (2005) 36 Cal. 4th 260, 269. Under California law, landlords owe tenants and patrons a duty to maintain land in their possession and control in a reasonably safe condition, which includes 'the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.' Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 676, disapproved on other grounds by Reid v. Google, Inc. (2010) 50 Cal 4th 512.

Courts consider numerous factors in determining the existence and scope of a duty, including: 'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, 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 the availability, cost, and prevalence of insurance for the risk involved.' Rowland v. Christian (1968) 69 Cal. 2d 108, 113. 'Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.' Castaneda v. Olsher (2007) 41 Cal. 4th 1205, 1213.

Courts require a heightened sense of foreseeability before holding a defendant liable for the criminal acts of third parties. See Melton v. Boustred (2010) 183 Cal. App. 4th 521, 532 ('[I]n the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner, in part because it is difficult if not impossible in today's society to predict when a criminal might strike.'). Foreseeability must be balanced against 'the burden of the duty to be imposed. Where the burden of prevention is great, a high degree of foreseeability is usually required; whereas where there are strong public policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.' Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal. App. 4th 419, 431. See also Sharon P. v. Arman, Ltd. (1999) 21 Cal. 4th 1181, 1195, disapproved on other grounds by Aguilar, 25 Cal. 4th at 853, fn. 19; Ann M., 6 Cal. 4th at 678-679 ('[D]uty in such circumstances is determined by a balancing of 'foreseeability' of the criminal acts against Calendar No.: Event ID:  TENTATIVE RULINGS

3066146 CASE NUMBER: CASE TITLE:  ROBINSON VS 99 CENTS ONLY STORES LLC [IMAGED]  37-2022-00001150-CU-PO-NC the 'burdensomeness, vagueness, and efficacy' of the proposed security measures. [Citation.]').

The California Supreme Court has described the duty analysis as follows: First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court's determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord. Again, other Rowland factors may come into play in a given case, but the balance of burdens and foreseeability is generally primary to the analysis.

Castaneda, 41 Cal. 4th at 1214 (quoting Vasquez v. Residential Investments, Inc. (2004) 118 Cal. App. 4th 269, 285.

In this case, while determining the existence of a legal duty of care is a matter of law for the court, determining the scope of that duty is bound up in triable issue of material fact such that summary judgment is inappropriate. More specifically, the court finds triable issues of material fact as to the foreseeability of the harm and the closeness of the connection between Mr. Robinson's murder and 99COS's, Monro-Mission's, and Monro Capital's alleged conduct. 99COS, Monro-Mission, and Monro Capital contend that it is undisputed that the risk of harm to Mr. Robinson was unforeseeable. Toward that end, Detective Estrada testified, in his experience, that he would not consider Mission Square to be a high-crime area. Detective Estrada further testified that a lot of homeless people lived in inland Oceanside generally and, in his opinion, businesses in strip malls attract those types of individuals.

When asked if he ever looked at the amount of service calls for the Mission Square Area, Detective Estrada answered that he did not. Monro Capital's Managing Director, Isaac Lilien, has stated, albeit without establishing personal knowledge, that neither Monro Capital nor Monro-Mission had any notice relating to Mr. Jones or violence at the Property before January 11, 2020. 99COS, through discovery, has indicated that the incident was not reasonably foreseeable owing to the burden of imposing such a duty to prevent criminal conduct as well as the unanticipated nature of Mr. Jones's conduct.

Plaintiffs have submitted admissible evidence contradicting the foregoing. More specifically, Plaintiffs have provided evidence of nearly 70 service calls to the Oceanside Police Department regarding Mission Square between January 1, 2017 and January 11, 2020. More importantly, 99COS employees Frederico Soriano, Jennifer Engvall, and Gail Christie testified that 99COS employees observed and/or encountered homeless/transient individuals every day at Mission Square prior to Mr. Robinson's murder.

Mr. Soriano testified that such individuals would go into 99COS yet he never saw the security guard interact with them. Ms. Engvall likewise testified to seeing a great number of homeless individuals every day in and around 99COS who would occasionally enter 99COS to shop and/or steal. Ms. Engvall further testified that the homeless people occasionally made her feel uncomfortable, unsafe, and/or scared because of their aggressive conduct and/or appearance. Ms. Engvall further testified to having seen homeless people brandishing dangerous weapons inside 99COS. Ms. Christie, for her part, testified to witnessing homeless individuals steal from 99COS every day. As to Mr. Jones specifically, Ms. Christie testified that she saw Mr. Jones at Mission Square every day with his bike and baseball bat strapped to the side of the bike. Ms. Christie further testified that elderly customers would not come to 99COS at night because of the transient situation at Mission Square. Ms. Christie testified that she did not report the issue to management because the homeless problem in Mission Square was common knowledge. Ms. Christie's testimony directly contradicts hearsay statements presented during Detective Estrada's deposition from a witness indicating that she had seen Mr. Jones every day for months yet Calendar No.: Event ID:  TENTATIVE RULINGS

3066146 CASE NUMBER: CASE TITLE:  ROBINSON VS 99 CENTS ONLY STORES LLC [IMAGED]  37-2022-00001150-CU-PO-NC never had a problem with him. In sum, the issue of foreseeability must be presented to the jury.

Additionally, there is a triable issue of material fact closeness of the connection between Mr. Robinson's murder and 99COS's, Monro-Mission's, and Monro Capital's alleged conduct. Specifically, there is a dispute as whether the security measures (or lack thereof) that 99COS, Monro-Mission, and Monro Capital had in place at the time of the incident allowed the attack to occur and/or failed to prevent the attack. Mr. Lilien testified that Monro Capital did not do monthly, quarterly, or yearly inspections of the Property and did not have knowledge of the number of service calls pertaining to any tenant at Mission Square. However, the Defendants dispute that this created actual and/or constructive knowledge of issues related to Mr. Jones and/or Mr. Robinson. At the same time, Mr. Lilien testified that Monro Capital, to his knowledge, never employed the services of a security consultant to determine the need for any security at the Property and did not have in place any formal program to determine crime or security risk assessment for the Property. He also did not know SecureNet's policy for replacing the security guard with someone else when the guard took lunch and/or dinner breaks. Ms. Tran likewise represents that she has been unable to discover, nor is she aware of, any agreement for security services between 99COS, Monro Capital, and Monro-Mission for the Property.

Causation Even if the court were to define the scope of a legal duty of care, which it has not by way of this ruling, it nevertheless would find that summary judgment is inappropriate owing to triable issues of material fact as to causation. 'The proper test for proving causation is the 'substantial factor' test. The 'causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty ...

was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.'' Mayes v. Bryan (2006) 139 Cal. App. 4th 1075, 1092-1093 (quoting Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal. App. 4th 1304, 1313; Leslie G. v. Perry Associates (1996) 43 Cal. App. 4th 472, 481). 'Conduct can be considered a substantial factor in bringing about harm if it 'has created a force or series of forces which are in continuous and active operation up to the time of the harm' [citation], or stated another way, 'the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another' [citation].' Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal. App. 4th 234, 253).

In this case, and as set forth above, there are triable issues of material fact as to whether 99COS's, Monro-Mission's, and/or Monro Capital's provision of, or failure to provide, security services was a substantial factor in causing and/or failing to prevent the attack on Mr. Robinson. Part of this inquiry goes back to foreseeability and whether additional security and/or training was necessary in light of the advanced knowledge/notice, if any, Defendants had concerning dangerous transient individuals in Mission Square and the risk they posed to patrons such as Mr. Robinson.

Accordingly, the court denies Defendants' motion for summary judgment.

Conclusion In light of the foregoing, the court denies Defendants' motion for summary judgment.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 29, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 29, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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