Judge: Lisa R. Jaskol, Case: 21STCV26259, Date: 2024-02-20 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Case Number: 21STCV26259    Hearing Date: February 20, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On July 16, 2021, Plaintiff Antonio Cervantes (“Plaintiff”) filed this action against Defendants XS Afterhours, Jack D Shubin (“Shubin”), John Doe (“John Doe”), and Does 1-100 for assault, battery, intentional infliction of emotional distress, negligence, and negligent hiring, supervision, and retention.  On January 6, 2022, Plaintiff amended the complaint to include Defendant 2523 E. Anaheim Inc. as Doe 1.  On January 18, 2024, Plaintiff amended the complaint to include Defendant Modern Protection as Doe 2. 

On November 17, 2021, Shubin and 2523 E. Anaheim, Inc. dba XS Afterhours ("XS") filed answers. 

On May 8, 2023, XS filed a motion for summary judgment to be heard on February 20, 2024.  On February 6, 2024, Plaintiff filed an opposition.  On February 9, 2024, XS filed a reply. 

The trial is scheduled for March 22, 2024. 

PARTIES’ REQUESTS 

XS asks the Court to grant summary judgment. 

Plaintiff asks the Court to deny the motion. 

EVIDENTIARY OBJECTIONS: Overruled 

LEGAL STANDARD 

          A.   Summary judgment 

          “‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

          When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

          “Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

          In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)   

          In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  

          B.       Landowner’s liability for third-party criminal acts  

“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 (Williams), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... 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 . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).) 

“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Courts look to what are commonly called ‘the Rowland factors’ in determining whether policy considerations favor such an exception.” (Ibid., citing Vasilenko, supra, 3 Cal.5th at p. 1083.) “These are “ ‘ “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)]’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) 

“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 p. 663, citing Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).) “In the case of a landlord, however, the general duty of maintenance that is owed to tenants and patrons ‘has been held to include 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.’” (Id. at p. 664, quoting Ann M., supra, 6 Cal.4th at p. 674.) “This exception to the ‘general no-duty-to-protect rule’ comes under the “ ‘ “special relationship” doctrine’” (ibid., quoting Delgado, supra, 36 Cal.4th at p. 235), which courts have found “‘in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.’” (Ibid., quoting Delgado, supra, 36 Cal.4th at p. 235.) 

“As explained more fully in Ann M., ‘the question of the scope of a landlord's duty to provide protection from foreseeable third party crime ... is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.’” (Williams, supra, 37 Cal.App.5th at p. 664, quoting Ann M., supra, 6 Cal.4th at p. 678.) Where “ ‘ “ ‘the burden of preventing future harm is great, a high degree of foreseeability may be required’ ” ’ ” (ibid., quoting Ann M., supra, 6 Cal.4th at p. 678), but “ ‘ “ ‘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.’ ” ’ ” (Ibid., quoting Ann M., supra, 6 Cal.4th at pp. 678-679.) “ ‘[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.’ ” (Ibid., quoting Ann M., supra, 6 Cal.4th at p. 679.) 

“ ‘[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.’ ” (Sakai v. Massco Investments, LLC (2018) 20 Cal.App.5th 1178, 1187-1188, quoting Ann M., supra, 6 Cal.4th at p. 676.) “The prescribed duty analysis ‘requires the court in each case . . . to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. “Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.” ’ ” (Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 108 (Hanouchian), quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Castaneda).) 

“ ‘ “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.” ’ ” (Hanouchian, supra, 51 Cal.App.5th at p. 108, quoting Castaneda, supra, 41 Cal.4th at p. 1214.) “[O]ther Rowland factors may come into play in a given case, but the balance of burdens and foreseeability is generally primary to the analysis.” (Ibid., quoting Castaneda, supra, 41 Cal.4th at p. 1214.) 

“To establish heightened foreseeability for third party criminal conduct, our authorities have consistently required actual knowledge—not constructive, inferential, or knowledge by association—to impose a burdensome legal duty.” (Hanouchian, supra, 51 Cal.App.5th 99, 111.) 

C.      Negligence 

“The elements of a negligence claim [is] . . . a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

DISCUSSION 

A.   The complaint 

In the complaint, Plaintiff alleges the following:  

          On or about July 18, 2019, Plaintiff was XS's patron at or near 2523 E Anaheim St., Wilmington, CA 90744 (“premises”) when an altercation between other patrons and XS's security and/or staff began.  As Plaintiff was exiting the premises and walking to his vehicle, John Doe shot Plaintiff, injuring him. 

          Plaintiff asserted claims for negligence (fourth cause of action) and negligent hiring, supervision, and retention (fifth cause of action) against XS. 

B.   Undisputed facts 

On July 18, 2019, Plaintiff arrived at XS, a night club, at around 2:00 a.m.  XS had security guards on duty. 

At about 3:00 a.m., a guy bumped into Plaintiff.  Plaintiff told him to watch where he was going and they got into an altercation or scuffle.  Two security guards whom Plaintiff knew, Manuel and Eddie, kicked the other person out of XS and let Plaintiff stay.  Plaintiff remained at XS for another hour and a half. 

At about 4:30 a.m., Plaintiff left XS, exiting through the front door and turning right to go to his car in the parking lot in the back.  Plaintiff left by himself.  At least one security guard was in the parking lot. 

Another vehicle pulled at least partly into XS’s property and an occupant of the vehicle began shooting towards Plaintiff. 

When Plaintiff got to his car, two bullets went through his car door. Plaintiff instantly ran around his car, kept running, kept hearing gunshots, and jumped underneath a parked big rig to hide.  The guy who shot the bullets was the person who Plaintiff had the altercation with. The security guard in the parking area did nothing to protect Plaintiff. 

One of the bullets hit Plaintiff.  He called 911 and responders took him to the hospital. 

In 2015-2016, Plaintiff had seen one to two security guards per night at XS and he saw fights, disagreements and other issues at XS requiring security intervention on a number of occasions. He observed that security was not always “on the spot to take care of” issues.  In addition, Plaintiff is aware of at least one other shooting at XS. 

C.   XS has carried its initial burden on summary judgment 

XS argues that it had no duty to prevent Plaintiff’s shooting because (1) it had hired security guards, who separated Plaintiff and the other patron when they had an altercation, (2) the shooting was not foreseeable, and (3) Plaintiff has not explained what further security measures XS should have taken that would have prevented the shooting.  

To support these arguments, XS has submitted the declaration of George Cataloiu, XS’s owner and manager since 2000. According to Cataloiu, “No incident remotely resembling the incident described in plaintiff’s complaint has ever happened at XS. There has never been a shooting either inside or outside the club since I have been involved in the management or ownership of the club. I am not aware of any serious injury suffered by any patron as a result of criminal conduct al the club or arising out of club activities.”  (Cataloiu Decl. ¶3.) 

XS has carried its initial burden on summary judgment, shifting the burden to Plaintiff. 

D.   Plaintiff has failed to raise a triable issue of fact 

Plaintiff asserts that "there is evidence of other fights, altercations, shootings, and such incidents at the club in question.”  (Opposition p. 6.)  To support the assertion, Plaintiff relies on his deposition testimony: 

·       “There was always a fight or, you know, disagreement where security had to step in and kick someone out” (Page 21) 

·       Plaintiff believes there was another shooting at XS but was “not exactly sure on that.”  (Page 45.)  Asked when the shooting occurred, Plaintiff answered, “Oh, man. Maybe -- I want to say maybe, like, three years or -- three years before I got shot, there was an incident, or maybe even two years before.”  Plaintiff found out about the other shooting from “one of the girls that worked there.” Asked what she told him, Plaintiff answered: “Oh, she just said, ‘Hey, did you hear about what happened over at the’ -- it was called The Cabaret before XS. And I was like, ‘No. What happened?’ And she said, ‘Oh, somebody got shot.’ And I was like, ‘Oh, wow. That's, you know, unfortunate.’ And that was all. That was the extent of, you know, when someone got shot there.”  Plaintiff did not know any other details about the shooting.  (Pages 45-46.) 

·       Plaintiff saw other altercations at XS.  (Page 46.) 

Plaintiff’s hearsay account of a prior shooting is not admissible.  Moreover, Plaintiff has not presented evidence that XS was aware of a prior shooting.  (See Hanouchian, supra, 51 Cal.App.5th 99, 111 [“To establish heightened foreseeability for third party criminal conduct, our authorities have consistently required actual knowledge—not constructive, inferential, or knowledge by association—to impose a burdensome legal duty”].)  Last, Plaintiff has not explained what additional protective measures he believes SX should have taken. 

Balancing the foreseeability of the criminal act against the burdensomeness, vagueness, and efficacy of the proposed security measures, and considering the other Rowland factors, the Court concludes that Plaintiff has not presented evidence creating a triable issue of fact concerning whether XS had a duty to take measures to provide protection from the third-party attack.  Therefore, the Court grants the motion for summary judgment. 

CONCLUSION 

          The Court GRANTS the motion for summary judgment filed by Defendant 2523 E. Anaheim, Inc. dba XS Afterhours. 

          Moving party is ordered to give notice of this ruling. 

          Moving party is ordered to file the proof of service of this ruling with the Court within five days.