Judge: Lisa R. Jaskol, Case: 21STCV28720, Date: 2025-03-17 Tentative Ruling
Case Number: 21STCV28720 Hearing Date: March 17, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On August 4, 2021, Plaintiff Oliver Pozo (“Plaintiff”) filed this action against Defendants Stater Bros. Markets (“Stater”), John Doe (“John Doe”), and Does 1-10 for assault, battery, negligence, negligent hiring, training and supervision, intentional infliction of emotional distress, and negligent infliction of emotional distress.
On January 4, 2022, Stater filed an answer and a cross-complaint against Cross-Defendant Maplebear Inc. dba Instacart (“Instacart”) and Roes 1-10 for breach of contract, breach of covenant of implied good faith and fair dealing, equitable indemnity, contribution, and declaratory relief. On August 12, 2022, the Court sustained Instacart’s demurrer to Stater’s cross-complaint with leave to amend. On September 9, 2022, Stater filed a first amended cross-complaint. On October 24, 2022, Instacart filed an answer to the cross-complaint. On November 22, 2023, the Court dismissed Stater’s cross-complaint without prejudice at Stater’s request.
On March 2, 2023, Plaintiff filed a first amended complaint against Stater, John Doe and Does 1-10 for assault, battery, negligence, negligent hiring, training and supervision, intentional infliction of emotional distress, and negligent infliction of emotional distress.
B. This motion
On May 23, 2023, Stater filed a motion for summary judgment or, in the alternative, summary adjudication. The motion was set for hearing on March 5, 2024. On February 20, 2024, Plaintiff filed an opposition. On February 29, 2024, Stater filed a reply. On March 5, 2024, the Court continued the hearing to May 3, 2024.
On March 12, 2024, the Court granted Plaintiff’s motion to compel Stater’s witness Liyen Alvarez (“Alvarez”) to answer questions at a deposition or, in the alternative, to strike Alvarez’s declaration from Stater’s summary judgment motion. The Court ordered Stater to produce Alvarez for a deposition within 15 days to answer questions about Stater’s policies and procedures to which Stater’s counsel previously objected. On March 26, 2024, the Court denied Stater’s ex parte application to modify the March 12, 2024 order. Based on the parties’ stipulation, the Court continued the hearing on Stater’s summary judgment motion to July 23, 2024.
On July 8 and 9, 2024, Plaintiff filed a supplemental declaration and supplemental objections. (The supplemental declaration states that exhibit 21 contains three pages from Alvarez’s deposition. However, the pages appear to be from the deposition of Joseph Guillen.) On July 18, 2024, Stater filed a reply to Plaintiff’s supplemental objections and an objection to Plaintiff’s supplemental declaration.
On July 23, 2024, due to an unexpected cyber attack on the Court’s computer systems, the Court continued the hearing on the summary judgment motion to March 17, 2025.
On December 30, 2024, Stater filed a notice of supplemental authority.
Trial is scheduled for May 20, 2025.
PARTIES’ REQUESTS
Stater asks the Court to grant summary judgment or, in the alternative, summary adjudication.
Plaintiff asks the Court to deny the motion or continue the hearing.
EVIDENTIARY OBJECTIONS
A. Plaintiff’s objections
Sustained: A1,
A2
Overruled: A3,
Ba-Bi, a
Overruled.
C. Stater’s objections
Plaintiff’s declaration: The evidence to which Stater objects is not material to the Court’s disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)
Alexander Zamudio’s declaration:
Sustained:
21
Overruled:
18
Richard Burkhart declaration: The evidence to which Stater objects is not material to the Court’s disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)
Objections 4-8 (citing Plaintiff’s exhibits 1, 4-5, 7, 11-18): The evidence to which Stater objects is not material to the Court’s disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)
SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
“‘[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.)
“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.)
DISCUSSION
A. The first amended complaint
The first amended complaint alleges that on or about November 24, 2020, while Plaintiff was shopping at Stater’s store located at 2090 Foothill Boulevard in the vicinity of La Verne, California, John Doe threw a heavy food can and container at Plaintiff’s forehead, injuring him.
B. Undisputed facts
On November 24, 2020, at around 2:00 to 3:00 p.m., Plaintiff was in Stater’s store located at 2090 Foothill Blvd., La Verne, California when John Doe threw a glass jar which struck Plaintiff in the head, injuring him.
No security guard was on duty at the store at the time of the incident.
C. Causes of action
1. Assault and battery
a. Legal standard
“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm. (So v. Shin (2013) 212 Cal.App.4th 652, 668-669 (So).)
“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. (So, supra, 212 Cal.App.4th at p. 669.)
b. Stater has carried its initial burden on summary
judgment or summary adjudication
Based on this evidence, Stater has carried its initial burden on summary judgment or summary adjudication, shifting the burden to Plaintiff.
c. Plaintiff has not raised a triable issue of material fact
Plaintiff argues that he has raised a triable issue of fact concerning the battery claim based on evidence that Stater gave John Doe access to the store, that a Stater employee had previously seen John Doe panhandling in the store, that the store was in a high crime area and had experienced thefts and “homeless activity,” that a shoplifter had previously thrown something at a Stater employee, and that Stater did not have security personnel at the store. Plaintiff also argues that Stater’s failure to fix a broken bathroom door latch caused a chain of events leading to Plaintiff’s injury. (Plaintiff does not separately respond to Stater’s arguments concerning the assault claim.)
Viewing Plaintiff’s evidence and the inferences fairly drawn from it in the light most favorable to Plaintiff, Plaintiff has failed to raise a triable issue of fact concerning whether Stater “acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner” or whether Stater “touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff . . . .” (So, supra, 212 Cal.App.4th at pp. 668-669.)
The Court grants summary adjudication of the assault and battery claims.
2. Negligence
a. Legal standard
“The elements of a negligence cause of action are (1) the existence of a duty, (2) a breach of that duty, (3) injury to the plaintiff caused by the defendant’s breach, and (4) actual damages.” (Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567 (Romero).)
“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.” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083; see Rowland v. Christian (1968) 69 Cal.2d 108, 113.)
“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.)
b. Stater has carried its initial burden on summary judgment or summary adjudication
Stater argues it had no duty to protect Plaintiff because John Doe’s criminal conduct was not reasonably foreseeable. Stater relies on evidence that Stater and its employees had no notice that John Doe posed a danger to Plaintiff or others, Stater had not experienced any previous encounters or problems with John Doe, Stater had no record of previous incidents of violent or aggressive conduct inside the store, Stater had no record of assaultive, violent, or aggressive conduct involving homeless persons inside the store, and Stater had no record of fights between customers or others inside the store.
Based on this evidence, Stater has carried its initial burden on summary judgment or summary adjudication, shifting the burden to Plaintiff.
c. Plaintiff has not raised a triable issue of material fact
Plaintiff
cites evidence that Slater negligently failed to inspect the broken lock on the
store’s bathroom door, allowing a customer named Alexander Zamudio ("Zamudio") to enter the bathroom
stall where John Doe was using illicit drugs.
John Doe then chased Zamudio through the store and threw glass jars at him. One of the jars struck Plaintiff on the head,
injuring him.
Although Plaintiff argues
these alleged facts demonstrate foreseeability, the Court finds that it was not
reasonably foreseeable that Stater’s failure to fix the lock on a bathroom door
would result in an attack on one of Stater’s customers.
Plaintiff also argues that “[i]f [Stater] had engaged a security guard or assigned a staff to watch and control orderliness in the floor in the Store, it would have been able to prevent the occurrence of the fight inside the Store and injury to Plaintiff.” (Opposition p. 14.) However, “the bare claim that more security personnel could have prevented a criminal attack shows only ‘abstract negligence.’ ” (Romero, supra, 91 Cal.App.5th at p. 572, quoting Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 773 (Saelzer).) “There must be direct or circumstantial evidence showing that the assailant took advantage of the defendant’s lapse or omission ‘in the course of committing his attack, and that the omission was a substantial factor in causing the injury.’ ” (Ibid., quoting Saelzer, supra, 25 Cal.4th at p. 773.) Plaintiff has not presented such evidence.
The Court finds that, on these facts, Plaintiff has failed to raise a triable issue of fact concerning whether John Doe’s attack was foreseeable. The Court grants summary adjudication of the negligence claim.
3. Negligent hiring, training, and supervision
a. Legal standard
“ ‘An
employer may be liable to a third person for the employer's negligence in
hiring or retaining an employee who is incompetent or unfit. [Citation.]’ ” (Phillips v. TLC Plumbing, Inc. (2009)
172 Cal.App.4th 1133, 1139, quoting Roman Catholic Bishop v. Superior Court
(1996) 42 Cal.App.4th 1556, 1564–1565.) “ ‘Liability for negligent hiring . . .
is based upon the reasoning that if an enterprise hires individuals with
characteristics which might pose a danger to customers or other employees, the
enterprise should bear the loss caused by the wrongdoing of its incompetent or
unfit employees.’ ” (Ibid.) “Negligence liability will be imposed on an
employer if it “ ‘knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes.’ ” (Ibid.,
quoting Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “ ‘Liability for negligent . . . retention of
an employee is one of direct liability for negligence, not vicarious liability.
[Citation.]’ ” (Id. at pp. 1139-1130, quoting Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)
b. Stater has carried its initial burden on summary judgment or summary adjudication
Stater presented evidence that (1) the Stater employees on duty when Plaintiff was injured had all received training on Stater’s policies and procedures relating to safety and security, (2) Stater’s policies and procedures are consistent with the safety and security practices employed in the retail grocery industry in Southern California, and (3) Stater’s employees on duty when Plaintiff was injured followed Stater’s policies and procedures.
Based on this evidence, the evidence cited above showing that John Doe’s attack was not reasonably foreseeable, and Plaintiff’s failure to present evidence showing that John Doe took advantage of Stater’s omission to provide security guards in the course of committing his attack and that the omission was a substantial factor in causing Plaintiff’s injury (see Romero, supra, Cal.App.5th at p. 572), the Court finds that Stater has carried its initial burden on summary judgment or summary adjudication of showing that Plaintiff cannot prevail on his claim for negligent hiring, training, or supervision. The burden shifts to Plaintiff.
c. Plaintiff has not raised a triable issue of fact
Plaintiff argues that Stater’s employees Alvarez, Lynn Lambeth, and “other workers on duty at the time and place of incident became unfit, or incompetent to perform inspect and maintain subject Store or supervise, manage and call for repair of the only toilet door latch for customers” and “became unfit, or incompetent to provide orderliness or security at the Store or prevent drug users from using the restroom and panhandling on the floor of the Store.”
To support these assertions, Plaintiff cites his responses to paragraphs 35-46 of Stater’s separate statement. However, Plaintiff has not explained how any of the evidence cited in his responses raises a triable issue of fact.
The Court grants summary adjudication of Plaintiff’s claim for negligent hiring, training, and supervision.
4. Intentional infliction of emotional distress
a. Legal standard
“The elements of a cause of action for [intentional infliction of emotional distress] are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 (Berry), citing Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (Potter).)
In addition, the extreme and outrageous conduct ‘ “must be . . . directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.” [Citation.] “The requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.” ’ ” (Berry, supra, 90 Cal.App.5th at p. 1273, quoting Potter, supra, 6 Cal.4th at p. 1002.)
b. Stater has carried its initial burden on summary judgment or summary adjudication
It is undisputed that John Doe threw the glass jar which struck Plaintiff. In addition, Stater has presented evidence that: (1) John Doe was not Stater’s employee or representative, (2) Stater did not tell John Doe to throw the glass jar at Plaintiff or give him permission or encouragement to do so, (3) Stater took no actions with the intention of causing Plaintiff emotional distress, (4) Stater took no actions in reckless disregard of the probability that Plaintiff would suffer emotional distress, and (5) John Doe’s actions caused any emotional distress which Plaintiff suffered as a result of being struck in the head with a glass jar.
Based on this evidence, the Court finds that Stater has carried its initial burden on summary judgment and summary adjudication, shifting the burden to Plaintiff.
c. Plaintiff has not raised a triable issue of fact
Plaintiff does not respond to Stater’s arguments concerning the intentional infliction of emotional distress claim. The Court finds that Plaintiff has not raised a triable issue of fact and grants summary adjudication of this claim.
5. Negligent infliction of emotional distress
a. Legal standard
“ ‘ “Direct victim” [negligent infliction of emotional distress] cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff. “[T]he label ‘direct victim’ arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ [Citation.] In these cases, the limits [on bystander cases ...] have no direct application. [Citations.] Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.” ’ ” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205-206, quoting Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1038; see Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656 [“At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress”]; Potter, supra, 6 Cal.4th at p. 984 [“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element."].)
b. The Court grants summary adjudication of the negligent infliction of emotional distress claim
For the reasons discussed above in addressing Plaintiff’s negligence claim, the Court finds that Stater has carried its initial burden on summary judgment and Plaintiff has failed to raise a triable issue of fact. The Court grants summary adjudication of Plaintiff’s negligent infliction of emotional distress claim.
D. Plaintiff’s request for a continuance
Plaintiff asks the Court to continue the hearing on the summary judgment motion because Plaintiff needs to take the depositions of Stater’s person most knowledgeable and Stater employees Joseph Guillen (“Guillen”) and Alvarez.
On January 22, 2024, the Court denied Plaintiff’s motion to compel the deposition of Stater’s person most knowledgeable. On March 12, 2024, the Court granted Plaintiff’s motion to compel Alvarez to answer questions at a deposition and ordered Alvarez to answer questions about Stater’s policies and procedures to which Stater’s counsel previously objected.
Plaintiff did not file a motion to compel Guillen’s deposition. Nonetheless, Plaintiff evidently took Guillen's deposition because Plaintiff has attached pages from the deposition to his July 8, 2024 supplemental declaration.
Because the Court has ruled on Plaintiff's motions to compel the depositions of Stater's person most knowledgeable and Alvarez, and Plaintiff took Guillen's deposition, the Court denies Plaintiff’s request to continue the hearing on the motion for summary judgment or summary adjudication to conduct these depositions.
CONCLUSION
The Court GRANTS Defendant Stater Bros. Markets’ motion for summary judgment or, in the alternative, summary adjudication.
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.