Judge: Frank M. Tavelman, Case: 22STCV22768, Date: 2024-11-08 Tentative Ruling

Case Number: 22STCV22768    Hearing Date: November 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY JUDGMENT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

This is a negligence action brought by the Estate of Valentina Orellana Peralta (Valentina), Soledad Peralta (Peralta), and Juan Pablo Orellana Larenas (Larenas) (collectively Plaintiffs). Plaintiffs bring this against the City of Los Angeles (the City), the Los Angeles Police Department (LAPD), Officer William Dorsey Jones Jr. (Jones), and Burlington Coat Factory of Texas, LLC (Burlington).

Plaintiffs allege that on December 23, 2021, Peralta and her 14 year-old daughter Valentina were shopping at a retail location owned by Burlington in North Hollywood. While Peralta and Valentina were in the store, Daniel Elena-Lopez (Lopez) entered the store, began to shoplift, and then became violent towards others. When LAPD officers arrived on the scene, they confronted Lopez and eventually fired upon him. Valentina, who was hiding in a nearby dressing room with Peralta, was unfortunately struck and killed by one of the bullets discharged at Lopez.

Before the Court is a Motion for Summary Judgment brought by Burlington. Burlington argues that no triable issue of fact exists as to the following issues:

1.      Burlington could not have foreseen the criminal incident that rapidly evolved into a police shooting, and policy considerations weigh against Plaintiffs' articulation of its duty.

2.      Any allegedly negligent conduct by Burlington was superseded by the criminal actions of a third party and the subsequent actions of a police officer.

3.      Because Plaintiffs' claim for negligence fails, Plaintiffs' claim for negligent infliction of emotional distress must also fail.

Plaintiffs have filed no opposition to this motion. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted.

ANALYSIS: 

I.                    LEGAL STANDARD 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) C.C.P.¿§ 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to¿any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿ 

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As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (C.C.P.¿§437c(p)(2);¿Scalf v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

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Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿ 

II.                 MERITS

To prevail on its motion, Burlington must demonstrate that no triable issue of fact exists as to any essential element of Plaintiffs’ claims against them. As previously stated, those claims are for (1) Negligence and (2) Negligent Infliction of Emotional Distress. The Court will analyze each of these claims in turn.

Negligence

The elements of a Negligence cause of action are duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Burlington asserts that there is no triable issue of fact as to the elements of duty, breach, and causation. As the existence of a duty is a threshold element of a Negligence action, the Court analyzes that element first.

“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) “One well-established limit is that there is no duty to act to protect others from the conduct of third parties.” (Williams supra, 37 Cal.App.5th at 663 [internal quotation marks omitted].)

There exists an exception to this limit where a party has shown a special relationship between the injured party and the landowner. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.) “Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Id. [internal quotation marks and citations omitted].) “It is established that business proprietors such as shopping centers, restaurants, and bars owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an obligation to undertake 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.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229 [citations and internal quotation marks omitted].)

However, “the scope of a landowner's duty to provide protection from foreseeable third party [criminal acts] ... is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. [D]uty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures.” (Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1095–1096 [citations and internal quotation marks omitted].)

When a plaintiff is unable to produce sufficient evidence of heightened foreseeability in the form of prior similar incidents or other indications of reasonably foreseeable risk of violent criminal assault on defendant's premises, there is no obligation on defendant's part to provide any guard, or additional guards, to protect against third party assaults. (Delgado supra, 36 Cal.4th at 245.) However, “the absence of heightened foreseeability ... merely signifies that defendant owe[s] no special-relationship-based duty to provide guards or undertake other similarly burdensome preventive measures; it does not signify that defendant owe[s] no other special-relationship-based duty to plaintiff, such as a duty to respond to events unfolding in its presence by undertaking reasonable, relatively simple, and minimally burdensome measures.” (Id.)

In Delgado, the defendant’s bar employed two bouncers, one inside the bar and the other positioned outside. (Delgado supra, 36 Cal.4th at 230.) The inside bouncer noticed “hostile stares” between the plaintiff and other bar patrons. Believing a fight was imminent, the bouncer asked the plaintiff to leave, but did not escort the plaintiff to his car. While in the parking lot, the plaintiff was accosted by the other bar patrons. (Id. at 231.) The California Supreme Court reiterated that the scope of a business proprietor's special-relationship-based duty included an obligation to provide guards to protect the safety of patrons only when ‘heightened’ foreseeability of third party criminal activity on the premises was shown. (Id. at 240.)

In reviewing the evidence, the Delgado court concluded that defendant did have actual notice of an impending assault at the premises. (Id. at 250.)  Accordingly, defendant’s special relationship-based duty included an obligation to take reasonable, relatively simple, and minimally burdensome steps to attempt to avert that danger. (Id.) The Court stated such steps may have included the bouncer (1) attempting to maintain the separation between plaintiff and the other bar patrons, (2) attempting to dissuade the other patrons from following, or (3) confirming that the outside bouncer was at his post and could help maintain the desired separation between plaintiff and the other patrons. (Id. at 246–247.)

What actions constitute “reasonable, relatively simple, and minimally burdensome steps” was further explored by the Supreme Court in Morris v. De La Torres. In Morris, a restaurant patron was stabbed by a gang member who had seized a knife from the restaurant. (Morris v. De La Torre (2005) 36 Cal.4th 260, 266–267.) The restaurant employees watched without calling for help. (Id. at 267.) The Supreme Court recognized “there may be situations in which the response that is ‘appropriate and reasonable under the circumstances’ includes not making such a call—as when doing so unreasonably would increase the danger to a patron, invitee, employee, or anyone else legally upon the premises....” (Id. at p. 277.) However, in Morris, the court could not “conclude as a matter of law that defendant's employees acted reasonably in declining to place a 911 call or undertake any other minimally burdensome measure on plaintiff's behalf. That disputed issue must be resolved by a jury in connection with its determination of whether defendant breached his duty to plaintiff.” (Id. at 278.)

In essence, Delgado and Morris make clear that the scope of the duty a business proprietor owes to a patron is determined by how foreseeable injury to a patron is. If third party violence is only generally foreseeable, a business proprietor’s duty only extends to reasonable, relatively simple, and minimally burdensome measures to ensure patron safety. If there is a high level of foreseeability, as demonstrated by significant evidence of prior third party crime at the premises, the duty owed increases to include the hiring of security guards and other similarly burdensome measures.

Here, Burlington has demonstrated that there is no triable issue of fact as to whether it owed Plaintiffs an increased duty due to Lopez’s violence being highly foreseeable. Burlington has provided uncontroverted evidence that this Burlington location had never experienced an incident involving a customer assaulting other customers or employees and had previously never had police respond to the premises. (Exh. B, Joshi Decl. ¶ 18.)

Although Burlington has certainly demonstrated there was no heightened foreseeability, the Court does not find the lack of previous criminal incidents renders such incidents entirely unforeseeable. Delgado and Morris make clear that at least some minimal level of duty is owed to patrons in situations where a business experiences an act of violence at its premises. While the scope of the duty owed is variable based on the level of foreseeability, the fact that there were no prior criminal assaults or police calls at this location does not entirely absolve Burlington of its duty. Just as the employees in Morris had the duty to call the police in response to an assault, so too did Burlington have a duty to respond to Lopez’s violence.

Accordingly, the measures which Burlington were required to take pursuant to their duty are determined by a low level of foreseeability. This comports with the allegations in Plaintiffs’ Complaint, which only assert that Burlington failed to take minimal steps to mitigate third party violence.

Plaintiffs allege that Burlington employees “…permitted Mr. Lopez to remain in the store and made no effort to address his increasingly violent and erratic behavior or warn any of the customers inside the store that they may be in danger.” (Compl. ¶ 21.) Plaintiffs further allege that Burlington employees “…failed to use the store intercom or otherwise to advise store patrons or warn the customers in the back of the store of the developing situation.” (Id.) Lastly, Plaintiffs allege Burlington failed to “…create, devise, implement, and/or execute a plan for evacuating the store in case of emergency and/or its failure to provide its employees with proper training, supervision, direction regarding evacuation of the store.” (Id.)

The Court notes that these proposed measures appear to be akin to the reasonable, relatively simple, and minimally burdensome steps described in Morris. The proposed burden on Burlington appears low and the level of foreseeability required is also low. From the evidence presented, the Court cannot say that no triable issue of fact exists as to any duty Burlington owed Plaintiffs. However, the Court does find the evidence demonstrates there exists no triable fact as to whether Burlington breached that duty.

Burlington submits the declaration of the store manager at the time of the incident, Komal Joshi (Joshi). Joshi states that he was at the premises at the time of the incident and initially approached Lopez to request that he leave the store. (Exh. B, Joshi Decl. ¶ 7.) Joshi states that while Lopez was being escorted out, he struck another employee. (Id. at ¶ 8.) It was at this time that Joshi called the police believing the situation to have escalated to be unsafe. (Id.; Exhibit C, LAPD Incident Recall Log.) Joshi states that he then yelled for customers and employees to evacuate the store. (Id. at ¶ 10.) Joshi also made an announcement to evacuate over the store’s PA system. (Id. at ¶ 11.) Joshi further states, on information and belief, that many of the store’s patrons and employees did evacuate through the stairwells while others took shelter in the assistant manager’s office. (Id. at ¶¶ 14-15.) Lastly, Joshi states that he remained on the phone with the police until they arrived at the scene approximately 15 minutes later. (Id. at ¶ 16.)

From Joshi’s sworn statement, it is clear that Burlington took each of the steps presented in Plaintiffs’ allegations. Joshi attests that he employed each of Plaintiffs’ alleged safety measures by calling the police, alerting customers over the intercom, and executing an evacuation. By virtue of their failure to oppose this motion, Plaintiffs have presented the court with no evidence to the contrary. As such, the only evidence in the case demonstrates that Burlington took the reasonable, relatively simple, and minimally burdensome steps required of them by law. It follows that Plaintiff has presented no triable issue of fact as to whether Burlington breached the duty owed to them as patrons of Burlington’s store.

The Court notes that this case presents an additional wrinkle as to foreseeability/breach which was not present in Delgado or Morris. Here, Valentina’s death was not the direct result of Lopez’s violence rather, it resulted from measures employed by the LAPD to stop Lopez. Even though the actions of Lopez were foreseeable to a certain extent, that a customer would be injured by police attempts to stop him is far less foreseeable. The Court need not determine whether the intervening actions of the LAPD should play a role in determining whether Burlington breached its duty in this case. Burlington has demonstrated that it fulfilled its legal duty even were Valentina’s death to have directly resulted from an assault by Lopez. The Court finds further analysis on this issue is unnecessary given that the police response could only decrease the foreseeability in this case.   

In short, the Court finds no triable issue of fact exists at to whether Burlington breached the duty it owed to Plaintiffs as a business proprietor. As the evidence indicates there were no prior incidents of violence or crime at this location, Burlington was only legally required to take reasonable, relatively simple, and minimally burdensome steps to ensure Valentina’s safety. Burlington’s uncontroverted evidence demonstrates their employee unequivocally took those steps by calling police and evacuating the store.

Negligent Infliction of Emotional Distress

The basic elements of a Negligent Infliction of Emotional Distress (NIED) cause of action are that: (1) defendant was negligent; (2) plaintiff suffered serious emotional distress; and (3) defendant's negligence was a substantial factor in causing plaintiff's serious emotional distress. (CACI 1620.)

The Court having found no triable issue of fact as to a breach constituting negligence, it follows that there can be no triable issue of fact as to NIED. The defeat of Plaintiffs’ cause of action for general negligence means they necessarily lack the first element of an NIED claim.

Conclusion

Burlington has demonstrated no triable issue of fact exists as to whether it breached its duty to Plaintiffs, and Plaintiffs have filed no opposition to this motion. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted.

As such, Burlington has successfully negated an essential element of each of Plaintiffs’ claims against them. Accordingly, the motion for summary judgment is GRANTED.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Burlington Coat Factory of Texas, LLC’s Motion for Summary Judgment came on regularly for hearing on November 8, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED.

DEFENDANT BURLINGTON TO GIVE NOTICE. 

IT IS SO ORDERED. 

DATE: November 8, 2024                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles