Judge Lynne M. Hobbs, Case Number: 20STCV23612, Date: 2024-02-08 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV23612, Date: 2024-02-08 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

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If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

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Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 20STCV23612 Hearing Date: February 20, 2024 Dept: 30

TURUYAN CUNGUSLU, et al. vs JOSHUA MARLON TORRES, et al.

TENTATIVE

Defendant’s motion for summary judgment, or in the alternative, summary adjudication is DENIED. Plaintiff is to give notice.

Moving party is ordered to give notice.

Evidentiary Objections

Plaintiff’s objections to Defendants’ evidence are OVERRULED.

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.) CCP Section 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.)

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. (CCP § 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.)

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.)

Discussion

Defendant moves for summary judgment or adjudication as to the causes of action for negligence and premises liability on the grounds that (1) there is no evidence of prior similar incidents at the premises and therefore the attack by a third party was not foreseeable to Ralphs; (2) the property where this incident occurred is not owned, controlled or managed by Ralphs and therefore Ralphs did not owe a duty to plaintiff; (3) Ralphs did not cause the physical altercation between Plaintiff and Defendant Torres; (4) Plaintiffs lack sufficient evidence to establish a claim for Mrs. Cunguslu’s loss of consortium claim as to Ralphs; and (5) Plaintiffs lack sufficient evidence to establish a claim for negligent hiring, supervision and retention as to Ralphs.

The elements of negligence and premises liability are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

i. Duty of Care

Defendant argues that there is no triable issue of material fact as to whether it owed a duty to Plaintiff because there is no evidence of prior incidents of violence at the store or the parking lot, and thus, Torres’ act of violence against Plaintiff was not reasonably foreseeable.

In cases involving third parties, businesses have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control, against reasonably foreseeable criminal acts of third parties. (Id.) A heightened foreseeability is required “in circumstances in which the burden of preventing future harm caused by third party criminal conduct is great or onerous” (i.e. where a plaintiff asserts a defendant had a legal duty to provide security guards, bright lighting, activate and monitor security cameras, provide periodic “walk-throughs” by existing personnel, or provide stronger fencing). (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at 243.) Heightened foreseeability is “shown by prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location.” (Id.) On the other hand, in cases where the harm can be prevented by simple means, a lesser degree of foreseeability may be required." (Delgado, supra, 36 Cal.4th at 238.)

Defendant presents evidence that there are no similar physical altercations at the subject premises prior to this incident. (SS No. 23.) There is no evidence of any prior incidents of assault or battery between customers at the property. (SS No. 24.)

However, the complaint identifies minimally burdensome measures Defendant could have taken to prevent the harm, such as providing an escort to Plaintiff as he was leaving the store, or escorting Torres from the premises. Given that the burden to prevent harm is minimal in this case, only regular reasonable foreseeability as opposed to heightened foreseeability is required. (Williams, supra, 37 Cal.App.5th at 665; Delgado, supra, 36 Cal.4th at 243-44, fn. 24.) As such, a showing of similar criminal incidents is not required.

Next, Defendant argues that it was not foreseeable that an altercation would ensue. Defendant presents evidence that Plaintiff never asked for help (SS 26), and never informed Vandermeet, the checker who assisted him with his flowers, that he was in fear of harm. (SS No. 28.)

However, Plaintiff has presented sufficient evidence to show that there are triable issues of material fact as to whether it was foreseeable an altercation would ensue. Plaintiff has presented the following evidence. Cunguslu entered the store and went to the floral department where he selected a bouquet. (PSUF No. 3.) Cunguslu then proceeded to a checkout line where Ralphs’ sales manager, Vandermeer was filling in as the cashier. (PSUF No. 4) Torres, along with his brother-in law Broadwell, and a toddler entered the same checkout line behind Cunguslu. (PSUF No. 6.) Vandermeer was unable to scan Cunguslu’s floral bouquet. (PSUF No. 7.) Cunguslu went back to the floral department to select another bouquet and returned to the line. (PSUF No. 8.)

Cunguslu walked past Torres, Broadwell, and the toddler, and began walking to the floral section which was adjacent to Vandermeer’s checkout line. (PSUF No. 9.) Cunguslu may have accidentally brushed up against Torres, Broadwell, or the toddler while exiting the line. (PSUF No. 10.) When Cunguslu left the line, he turned right and walked toward the floral department. (PSUF No. 11.) Torres, in a fit of rage, left the checkout line in pursuit of Cunguslu. (PSUF No. 12.) Torres followed Cunguslu back to the floral department. (PSUF No. 13.) Cunguslu retrieved a second bouquet and began to walk back to the checkout line. (PSUF No. 14.) Torres confronted Cunguslu as he began his walk back from the floral department to the checkout line. (PSUF No. 15.) Torres yelled at him to apologize. (PSUF No. 16.) Torres continued to harass Cunguslu while yelling at him to “say sorry.” (PSUF No. 18.) Torres was flailing his arms and making aggressive gestures to threaten Cunguslu as they returned to the checkout line (PSUF No. 19.) Cunguslu is Turkish and understands very few English words. (PSUF No. 20.) Torres was yelling other words that the Turkish speaking Cunguslu could not understand. (PSUF No. 21.)

Ralphs security cameras show Vandermeer turn her head towards the floral department while Torres was following Cunguslu and yelling at him. (PSUF No. 24.) The yelling and threatening behavior of Torres was within earshot and clearly visible to Ralphs’ cashier, Vandermeer. (PSUF No. 25.)

As Vandermeer was again checking Cunguslu out, Torres walked out of the checkout line passing behind Cunguslu in a noticeably suspicious and angry manner directly in front of Vandermeer. (PSUF No. 26.) Torres then left the store while Broadwell remained inside the store and Torres lay in wait for Cunguslu to exit. (PSUF No. 27.) Vandermeer knew Torres and Broadwell were together. (Id., No. 28.) She had seen Broadwell attempt to calm Torres down. (Id., No. 29.)

Before Torres exited the store, he stood approximately ten feet way from Cunguslu and Vandermeer while waiving and pointing his finger at Cunguslu and yelling the threat “you will see” to Cunguslu, all within earshot of Vandermeer and other Ralphs employees. (PSUF No. 32.) Torres was lurking outside waiting for Cunguslu. (PSUF No. 33.)

After paying for the bouquet, Cunguslu exited the same door as did Torres, took a few steps into Ralphs’ vestibule, and looked left and right for Torres as he wondered where Torres went because Torres was in such a rage. (PSUF No. 46.) Cunguslu took a few more steps outside and was confronted by Torres. (PSUF No. 47.) Torres told Cunguslu, “you didn’t say sorry.” (PSUF No. 48.) Then Torres grabbed the bouquet out of Cunguslu’s hands and threw a portion of the flowers on the ground. (PSUF No. 49.) Cunguslu retreated within Ralphs’ vestibule toward the sliding doors, stopping near the shopping cart corral and Ralphs’ doors (PSUF No. 50.) Torres then punched Cunguslu in the face and ran away. (PSUF No. 51.)

Based on the evidence presented, the Court finds that there are triable issues of fact as to whether it was foreseeable that Torres would physically assault Plaintiff given that he followed him out of the checkout line to the floral department and back into line, yelling at him all the while. Moreover, Torres left the store saying “you will see” to Plaintiff, while Torres’ brother-in-law was still behind Plaintiff in line, adding to the foreseeability of harm. The entire verbal altercation occurred in front of the sales manager, Vandermeer, and there is evidence that she saw the verbal altercation.

ii. Did Defendant Own, Possess, or Control the Property?

Defendant next argues that there is no triable issue of material fact as to whether it owned or controlled the parking lot where the physical altercation occurred.

“A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control.¿ Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.”¿¿(Donnell v. California Western School of Law¿(1988) 200 Cal.App.3d 715, 720 [citation omitted].)¿ “Without the ‘crucial element’ of control over the subject premises, no duty to exercise reasonable care to prevent injury on such property can be found.”¿¿(Gray v. America West Airlines, Inc.¿(1989) 209 Cal. App. 3d 76, 81 [citation omitted].)¿

“A person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own.¿ A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls.”¿ (CACI 1002.)¿

Defendant presents evidence that Ralphs leases the store premises from Seventy-Fifth, LLC and Combined Properties, Inc. (SS No. 4.) The Lease Agreement between the Co-Defendants and Ralphs contains Section 11.1 which states in relevant part: “The Common Area shall be under the management, supervision and control of the Landlord.” (SS No. 5.) Lease Section 11.5 states in relevant part: “Landlord shall operate and maintain Common Area” and provide “(h) Reasonable security in the Common Area.” (Id., No. 6.)

Defendant contends there is no dispute that the Common Areas of the property include the subject parking lot where Plaintiff’s incident occurred. (SS No. 2.) 75th LLC and Combined Properties, Inc. contracted with co-defendant Platinum Security, Inc. to perform security services at the property and parking lot. (SS No. 8.)

Surveillance video shows the physical altercation between the two customers occurred outside the store and is initiated in and concludes in the parking lot where Torres knocked Plaintiff down or Plaintiff fell face first onto the concrete resulting in injuries. (SS No. 33.) Defendant thus argues that there is no evidence of any physical altercation, fight, physical assault or battery between Cunguslu and Torres occurring inside the Ralphs store.

However, the evidence shows that the physical fight started right outside the store’s entrance, where there are shopping carts, a trash can, a floor mat with a Ralphs logo, and various signs. (Gravich Decl., Exh. F; PSUF Nos. 43-44, & 51.) Ralphs has provided no evidence that indicates that this vestibule area is a common area not within its control. Further, the reasonable inferences to be drawn from the placement of the items such as the floor mat with Ralphs’ logo, and shopping carts are that this area was controlled by Ralphs. Therefore, Ralphs has not met its burden to show no triable issues of material fact exist as to whether it controlled the area where the physical altercation occurred.

iii. Causation

Defendant argues that any argument that Defendant could have done something to prevent the fight, such as additional security measures, is too speculative to establish causation.

In order to “demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor or omission’ in bringing about the injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4thh 763, 774.) “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor.” (Mayes v. Bryan (2006) 139 Cal.App.4thh 1075, 1095, citing CACI No. 430.) “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Ibid.) “ ‘ “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” ’ ” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104, citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206.)

The Court finds that Defendant has not met its burden on summary judgment to show that no triable issues of fact exist as to whether Plaintiff’s argument regarding causation is speculative. Defendant relies on inapposite cases that involve attacks where Defendants had no actual knowledge of the conduct of the assailants or their presence on the premises. In Noble v. Los Angeles Dodgers, Inc., (1985) 168 Cal.App.3d, 912, the court found the direct cause of plaintiff’s injury was the conduct of the person or persons who assaulted plaintiff and there was no evidence defendant landowners had actual knowledge of the conduct of the assailants or of their presence on the premises. (Noble, supra, 168 Cal.App.3d at 917.) Therefore, causation could not be established under plaintiff’s theory that defendants were negligent in failing to effectively deter anyone and everyone from acting in such a manner. (Ibid.)

However, this case is unlike Noble, and Saelzer, relied on by Defendants, where the landowners did not know of the presence or conduct of the assailants. Here, the altercation occurred inside the store in full view and within earshot of Defendant’s employee. It is worth noting that the court in Noble specifically contrasted the facts of that case from the circumstances present in this case. The Court stated: “In cases which the specific conduct of third parties is brought to the attention of a defendant property owner sufficiently in advance of the injury to give the defendant an opportunity to act to prevent the injury, the causal connection between failure to act and the injury is patent.” (Noble, supra, 168 Cal.App.3d at 916.) As such, the Court finds that this case does not simply involve the failure to provide adequate deterrence to criminal conduct. (It is well-established that absent some evidence of reasonable precautions Defendants could have taken which more likely than not would have prevented Plaintiff’s injuries, general allegations of a failure to deter criminal conduct are too speculative to prove causation. Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, 775; see also Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.)

iv. Negligent Hiring, Supervision, and/or Training Cause of Action

Defendant also contends that Plaintiff lacks sufficient evidence to establish negligent hiring, supervision or retention by Ralphs.

A cause of action for negligent hiring, supervision, or retention of an employee requires the following elements: (1) the employer hired employee; (2) the employee was/became unfit or incompetent to perform the work for which he was hired; (3) the employer knew or should have known the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the employer’s negligence in hiring/supervising/ retaining the employee was a substantial factor in causing plaintiff’s harm. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring or retaining the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.) Negligent hiring, retention, or supervision is a form of direct negligence. (Ibid.)

Here, Defendant argues, without citing to any evidence whatsoever, that Plaintiffs have not made any showing that Vandermeer created any particular risk or hazard, failed to establish or produce any evidence showing Ralphs was negligent in their hiring or supervision or retention of Vandermeer, and omitted to obtain or produce any evidence that any store director or any Ralphs supervisor had prior knowledge of Ms. Vandermeer’s omission to act as claimed by Plaintiffs.

However, without any evidence, Defendant has failed to meet its burden to present evidence sufficient to show no triable issue of material fact exists.

v. Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

Defendant contends that because Plaintiffs are unable to establish any tortious conduct on behalf of Ralphs with regard to the “parking lot altercation,” Norma’s loss of consortium claim cannot be maintained.

However, as discussed above, Defendant is not entitled to summary judgment or adjudication as to the negligence-based causes of action. Therefore, Defendant is also not entitled to summary adjudication as to Norma’s cause of action for loss of consortium.