I. BACKGROUND 

Plaintiff Marlo Hempstead (“Plaintiff”) filed this action against defendants Game Sports Bar and Grill, LLC, Tyrei Lacy, Sylvia Lacy, 5600 Gateway Center, LLC (“5600 Gateway”), H.B.D. Incorporated (“H.B.D.”), Burger King Corporation for damages relating to an incident wherein Plaintiff alleges after he had an argument with one of defendants’ employee, Plaintiff was shot in the back by a security guard while on Defendants’ premises. (FAC ¶¶ 16-23.) The operative First Amended Complaint (“FAC”) sets forth four causes of action for (1) negligence, (2) negligent hiring, training, supervision, (3) assault & battery, and (4) premises liability. 

Defendants 5600 Gateway and H.B.D. (collectively, “Defendants”) now move for summary judgment on Plaintiff’s FAC. Plaintiff alleges all four causes of action against Defendants. Any opposition to the motion was due on or before February 26, 2024. (CCP § 437c(b)(2).) To date, Plaintiff in pro per has not filed any opposition.¿¿ 

II. MOTION FOR SUMMARY JUDGMENT 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)    

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord 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.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, 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(c).) 

The elements of a premises liability and negligence cause of action 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.)  

Additionally, an employer may be liable to a third party for negligently hiring or retaining an unfit employee. (J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal. App. 5th 1142, 1163.)  “There are ‘two elements necessary for a duty to arise in negligent hiring and negligent retention cases—the existence of an employment relationship and foreseeability of injury.’ [Citation.]“  (Dent v. National Football League (2018) 902 F.3d 1109, 1122 [applying California law].)  An employer’s duty “is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.”  (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214 [emphasis in original].)    

Here, the undisputed material facts are as follows. 5600 Gateway is the owner of the property located at 5630 W. Manchester Ave., Los Angeles, California 90045. H.B.D. is 5600 Gateway’s management company and manages the subject property. Plaintiff alleges that he was shot by an unknown security guard employed by Defendants on June 28, 2020. However, Defendants do not employ security guards on the property, nor did Defendants employ security guards on June 28, 2020. No agent or employee of Defendants shot Plaintiff on the night of June 28, 2020. Defendants aver that the LAPD Investigative Report and the deposition of Officer Samuel Gil demonstrates that Plaintiff was shot on neighboring property, and not on Defendants’ property. The responding officers found a spent shell casing and a pool of blood in the drive-thru lane of a nearby Burger King. 

Defendants have negated the essential elements of each cause of action. Thus, Defendants have met their moving burden to show they are entitled to judgment as a matter of law. The burden shifts to Plaintiffs to raise a triable issue of material fact in this regard.  However, because the motion is unopposed, Plaintiff necessarily fails to meet the shifted burden.¿¿¿¿ 

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Kiseskey v. Carpenters’ Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 [“The tort of assault is complete when the anticipation of harm occurs.”].)    

In this case, Defendants’ evidence above shows that no employee of Defendants caused intentional harmful contact with Plaintiff because Defendants do not employ any security guards, and there were no security guards employed or present at the time of the incident on June 28, 2020. This is sufficient to meet Defendants’ prima facie moving burden.  Plaintiff does not oppose the motion, and therefore fails to meet the shifted burden.    

III. CONCLUSION  

The unopposed motion for summary judgment filed by defendants 5600 Gateway and H.B.D. is GRANTED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 8th day of March 2024