Judge Lisa K. Sepe-Wiesenfeld, Case Number: 20SMCV02017, Date: 2024-02-08 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 20SMCV02017, Date: 2024-02-08 Tentative Ruling

Defendants Apartments Finders Inc. and Fox Knoll II, LLC (“Defendants”) move the Court for an order granting summary judgment or adjudication in their favor as to Plaintiff Katie Burgess (“Plaintiff”)’s claims for premises liability, negligence, and negligent hiring, retention, and supervision. Plaintiff has not filed an opposition to Defendants’ motion. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party’s failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (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.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

To establish a claim for negligence, Plaintiff must establish (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

“For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) “[A]s 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.) For a defendant to be held liable for injuries arising out of the conduct of a third party, the plaintiff must identify an exception to the “general no-duty-to-protect rule.” (Ibid.) One such exception includes the “special relationship” doctrine, which provides “a defendant may owe a duty to protect the plaintiff from third party conduct if the defendant has a special relationship with either the plaintiff or the third party.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.)

After establishing an exception applies, the plaintiff must also demonstrate that imposition of a duty is proper pursuant to the factors identified in Rowland v. Christian (1968) 69 Cal.2d 108, 117, superseded by statute on other grounds by Civil Code section 847. In considering these factors to determine whether a duty of care is properly imposed, the Court considers “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 the 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.” (Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1096, quotation marks omitted.)

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. Other Rowland factors may come into play in a given case, but the balance of burdens and foreseeability is generally primary to the analysis.

(Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 108, quotation marks, brackets, and citation omitted.) As to security guards, “[t]he monetary costs of security guards is not insignificant,” “the obligation to provide patrols adequate to deter criminal conduct is not well defined,” and “the social costs of imposing a duty on landowners to hire private police forces are also not insignificant,” such that “a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards.” (Id. at p. 109.) In addition, foreseeability of the conduct alleged, specifically sexual assault, requires showing actual knowledge of facts that would indicate criminal activity will occur; “constructive, inferential, or knowledge by association” is not enough “to impose a burdensome legal duty” on a party. (Id. at p. 111.)

In the First Amended Complaint, Plaintiff alleges that she was a resident of 23901 Civic Center Way, Unit 119A, in Malibu pursuant to a June 2019 lease agreement with landlord Defendant Apartment Finders, Inc. (FAC ¶ 8.) The residence was part of a large condominium complex near Pepperdine University, and there is a large field to the south of the property which provides shelter for a homeless population who had a propensity to enter the property illegally, which was known to Defendants. (FAC ¶ 9.) Plaintiff alleges that Defendant Matthew Fairchild, an intruder and nonresident of the property, entered the property from the field and unlawfully entered Plaintiff’s apartment while she was asleep. (FAC ¶ 13.) Plaintiff awoke in the middle of the night as a result of being sexually assaulted by Fairchild. (Ibid.)

Plaintiff alleges that Defendants knew of prior criminal activity on the property and failed to take sufficient action to prevent such conduct. (FAC ¶ 14.) Plaintiff also alleges that Defendants were aware of the dangers presented by the conditions immediately adjacent to the property, including a history of unruly behavior, violence, sexual and other assaults, crime, unlawful, dangerous, and chaotic conduct, threats made and directed at property residents, and continual trespassing upon and over the property by nonresidents, including members of the homeless population residing immediately adjacent to and along the border of, and sometimes upon, the property. (FAC ¶ 41.) Plaintiff alleges that Defendants had knowledge of sexual assaults and other assaults occurring on and adjacent to the property, and they had warning of the impending criminal conduct that would lead to Plaintiff’s injuries, but they failed to properly secure and maintain the property, thereby resulting in Plaintiff’s harm. (FAC ¶¶ 42-43.)

Defendants provide undisputed evidence that Defendant Fox Knoll II, LLC is the record owner of the property, and Defendant Apartment Finders, Inc. entered into a lease agreement with Plaintiff and two roommates for rental of the property for one year. (Defs.’ UMF Nos. 13-15.) Defendants provide evidence that they had no reason to believe the property required monitoring by security guards, they did not employ any security guards for the property, they did not pay for or retain any security guards for the property, and they did not create any security policies for the property. (Defs.’ UMF Nos. 25-32.) Instead, the homeowners’ association paid for and retained the security services, and there was a security booth at the property. (Defs.’ UMF Nos. 33, 35, 37.) During the time Plaintiff lived there, the front door locks worked properly, and a key was required for entry. (Defs.’ UMF No. 46.) Plaintiff observed an empty lot close to the property with transients present, but she did not discuss her concerns with anyone at the complex, she did not observe or experience any confrontations with the individuals, and she did not complain about the transients or security. (Defs.’ UMF Nos. 51, 54-68.) On the date of the incident, Plaintiff was asleep and woke up with someone touching her, and Plaintiff believes the individual entered through the front door, which was unlocked. (Defs.’ UMF Nos. 78, 82.)

The evidence shows that Defendants were not responsible for security at the property, Plaintiff failed to voice any concerns to Defendants about security or her safety because of the empty lot nearby, and the individual who entered her unit obtained access because Plaintiff’s door was unlocked. This evidence allows Defendants to meet their burden of showing no triable issue of material fact exists as to whether they breached a duty of care they owed to Plaintiff. Plaintiff’s failure to oppose the present motion renders it such that there is no triable issue of material fact as to Plaintiff’s claims for premises liability and negligence. Accordingly, Defendants’ motion for summary adjudication is GRANTED as to Plaintiff’s fifth and sixth causes of action.

The elements of a cause of action for negligent hiring, retention, and supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Plaintiff alleges that Defendants employed and oversaw individuals to provide security at the property, Defendants knew or should have known that the employees were unfit to perform the security work, and Plaintiff’s injuries were caused by Defendants’ failure to hire competent employees to provide security services. (FAC ¶¶ 53-57.)

Again, Defendants provide undisputed evidence that they had no reason to believe the property required monitoring by security guards, they did not employ any security guards for the property, they did not pay for or retain any security guards for the property, and they did not create any security policies for the property. (Defs.’ UMF Nos. 25-32.) Instead, the homeowners’ association paid for and retained the security services, and there was a security booth at the property. (Defs.’ UMF Nos. 33, 35, 37.)

The evidence shows that Defendants were not responsible for security at the property. This evidence allows Defendants to meet their burden of showing no triable issue of material fact exists as to whether Defendants negligently hired, retained, or supervised any employees responsible for Plaintiff’s harm. Plaintiff’s failure to oppose the present motion renders it such that there is no triable issue of material fact as to Plaintiff’s claim for negligent hiring, retention, and supervision. Accordingly, Defendants’ motion for summary adjudication is GRANTED as to Plaintiff’s seventh cause of action.

Given that Defendants’ motion for summary adjudication has been granted as to each claim alleged against Defendants, Defendants Apartments Finders Inc. and Fox Knoll II, LLC’s Motion for Summary Judgment is GRANTED. Defendants Apartments Finders Inc. and Fox Knoll II, LLC shall prepare, serve, and submit a propose judgment as per statute.