Judge: Nathan Vu, Case: 30-2019-01100760, Date: 2022-10-31 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motions for Summary Judgment or, in the Alternative, Summary Adjudication
Defendant Universal Building Maintenance, LLC’s motion for summary judgment or, in the alternative, summary adjudication is GRANTED as to the sixth cause of action and DENIED as to the remainder of the motion.
Defendant Universal Protection Services LP’s motion for summary judgment or, in the alternative, summary adjudication is GRANTED as to the sixth cause of action and DENIED as to the remainder of the motion.
Plaintiff’s evidentiary objections to the declaration of Ramon Acosta are OVERRULED as to evidentiary objection numbers 1-2 and SUSTAINED as to evidentiary objection numbers 3-10.
Plaintiff’s evidentiary objections to the declaration of Thanh Han are OVERRULED as to evidentiary objection numbers 1-4 and SUSTAINED as to evidentiary objection numbers 5-11.
UBM’s and UPS’ evidentiary objections to the declaration of Norma Garcia are OVERRULED as to evidentiary objection numbers 1-2, and were not material to the resolution of the motion and not ruled upon as to evidentiary objection number 3. (See Evid. Code, §§ 1200 & 1280; Civil Proc. Code, § 437c(q).)
UBM’s and UPS’ evidentiary objections to the declaration of Hugo Lopez are OVERRULED as to evidentiary objection numbers 1-9 and 11, and SUSTAINED as to evidentiary objection number 10. (See Evid. Code, §§ 1200 & 1280.)
UBM’s and UPS’ evidentiary objections to the declaration of Alejandra Domenzain were not material to the resolution of the motion and the court need not rule on them. (See Civil Proc. Code, § 437c(q).)
Defendant Universal Building Maintenance, LLC (UBM) and Universal Protection Services LP (UPS) move for summary judgment, or in the alternative summary adjudication.
Standard for Summary Judgment and Summary Adjudication
“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Civil Proc. Code, § 437c, subd. (c).)
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Civil Proc. Code, § 437c, subd. (f)(1).)
A “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 . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)
A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Civil Proc. Code § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, italics original.)
In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)
If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)
The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)
In ruling on a motion for summary judgment or summary adjudication, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, citations omitted.) Courts “’construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.)
A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)
UBM’s Motion for Summary Judgment or Summary Adjudication
In or about March 1, 2017, Defendant Quintana Office Property, LLC (Quintana) and UBM entered into a Building Services Contract wherein UBM was hired to provide janitorial services. The services were to be provided at the Subject Premises, which was comprised of six separate buildings, five (5) of which were owned by Quintana: 17875 Von Karman (Building A), 17877 Von Karman (Building B or Subject Building), 17872 Gillette (Building C), 17838 Gillette (Building D), and 17892 Gillette (Origin).
Plaintiff was hired by UBM as an employee on or around 12/23/2018. As part of her regular duties, Plaintiff was to clean office buildings after typical business hours (i.e., on the night shift). At approximately 1:20 a.m. on 02/06/2019, Plaintiff suffered an assault and battery at the hands of Eduardo Godoy Gonzalez (Gonzalez) at the Subject Building.
UBM submitted the following evidence in support of the instant motion for summary judgment or, in the alternative, summary adjudication: the Declaration of Carl Basile, to which was attached copies of Plaintiff’s Third Amended Complaint, the Declaration of Ramon Acosta, Plaintiff’s Responses to UBM’s Form Interrogatories, Set One, and UBM’s Supplemental Responses to Plaintiff’s Requests for Admission, Set One. (See ROA #303.)
Carl Basile is UBM’s counsel and his declaration serves only to lay a foundation for the attached documents. Basile’s declaration contains no relevant facts based on personal knowledge.
Ramon Acosta’s statements in paragraphs 6-13 of his declaration lack adequate foundation or personal knowledge of the facts stated. Acosta declares only that he is currently employed as Branch Manager for UBM. (ROA #303, Exh. B, ¶ 1 [Acosta Decl.].)
In addition, UBM’s Supplemental Responses to Plaintiff’s Request for Admissions numbers 10, 13-14, and 24-26 are denials that are insufficient to serve as competent evidence. (See Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal.App.5th 948, 972 [“A denial . . . is not a statement of fact; it simply indicates that the responding party is not willing to concede the issue and, as a result, the requesting party must prove the fact at trial.”], citations omitted; see also Civil Proc. Code, § 437c(b)(1) [motions for summary judgment “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken”], italics added.)
Essentially, UBM has submitted evidence showing: the action arises out of an incident that occurred on or about 02/05/2019 at the Subject Premises located at 17877 Von Karman Avenue, Irvine, CA; that Plaintiff was acting in the course and scope of her employment with UBM at the time of the incident; that Plaintiff claims she suffered physical and emotional injuries when an unwelcome intruder gained access to the Subject Premises; that Quintana Office Property had contracted with UBM for night time janitorial services at the Subject Premises; and that UBM never owned, leased, occupied, or controlled the Subject Premises.
UBM has not met its initial burden to disprove at least one essential element of the causes of action alleged in Plaintiff’s Third Amended Complaint (TAC), except for the sixth cause of action for premises liability. UBM’s motion for summary judgment or, in the alternative, summary adjudication must be denied except as to sixth cause of action.
UPS’s Motion for Summary Judgment or Summary Adjudication
In or about 02/06/2017, Quintana and Defendant Universal Protection Services, LP (UPS) entered into a Building Services Contract wherein UPS was hired to provide professional security services at the Subject Premises from Monday through Friday, 6:00 a.m. to 8:00 p.m., and night patrols seven days a week, with a roving officer patrolling the Subject Premises twice every evening for approximately 20-30 minutes. The Post Order providing the scope of work for the security guards expressly provides, “Your purpose as a Security Officer is the protection of life and property.”
As explained above, Plaintiff was hired by UBM as an employee and was assaulted and injured by Gonzalez while she was on the job.
Duty
UPS argues that the first cause of action for negligence, the second cause of action for negligent supervision, the third cause of action for negligent failure to warn, train, or educate, and fifth cause of action for negligent infliction of emotional distress fail because UPS owed no duty to Plaintiff because its duty is limited by the services it contractually agreed to provide to Quintana.
Specifically, UPS asserts that:
UPS further contends that the evidence shows the roving guard conducted the patrols and inspected all areas of the buildings (including the doors, windows, walls, and trash enclosures) during those two evening inspections for suspicious activities and maintenance issues, and ensured that these areas were secured.
“[T]he existence and scope of a defendant’s duty is an issue of law, to be decided by a court not a jury.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) “As a general matter there is no duty to act to protect others from the conduct of third parties. One exception to that general rule is found in the ‘special relationship’ doctrine. A defendant may owe an affirmative duty to protect another from the conduct of third parties, or to assist another who has been attacked by third parties, if he or she has a ‘special relationship’ with the other person.” (Morris v. De La Torre (2005) 36 Cal.4th 260, 269, citations omitted.)
“A special relationship may . .
. arise out of a statutory duty or a contractual duty.” (Seo v. All–Makes
Overhead Doors (2002) 97 Cal.App.4th 1193, 1203; Alexandria
S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal.App.4th
110, 116.) “If a special relationship arises out of a contractual duty,
[then] the duty is owed not only to the parties to the contract but also to
those persons intended to be benefited by the performance of the contract.” (Seo
v. All–Makes Overhead Doors, supra, 97 Cal.App.4th at p. 1203.)
In Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199–200, the special relationship exception was applied to security guards. In that case, Court of Appeal held, “By contracting with [a] business to provide security services, the security guard creates a special relationship between himself and the business’s customers. This relationship, in and of itself, is sufficient to impose on the guard the obligation to act affirmatively to protect such customers while they are on the business premises.” (Id. at p. 200, citations and footnote omitted; see also Elizarraras v. L.A. Private Security Services, Inc. (2003) 108 Cal.App.4th 237, 241–242 [discussing security guards and special relationship exception]; Trujillo v. G.A. Enterprises (1995) 36 Cal.App.4th 1105, 1108–1109 [same].)
It is undisputed that UPS had a contractual duty to provide night patrols seven days a week, with a roving officer patrolling the Subject Premises twice every evening for approximately 20-30 minutes. (UPS Separate Statement number 8 [Han Decl., Exh. B]; Plaintiff’s Additional Facts number 28 [Johnson Decl., ¶ 14, Exh. 9].) Further, the Post Order providing the scope of work for the security guards expressly provides, “Your purpose as a Security Officer is the protection of life and property.”
Plaintiff in this case was in a position similar to the customers in Marois v. Royal Investigation & Patrol, Inc. – in contracting for the security services, the businesses meant to benefit and provide protection to their customers and late night employees in the same manner. (Compare Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 225, 234 [special relationship found between businesses and their “tenants, patrons, or invitees”].) As noted by the Post Order, UPS was hired to protect not only “property” but “life” as well. By virtue of this special relationship, UPS had an affirmative duty to protect Plaintiff while Plaintiff was at the Subject Premises.
Foreseeability
UPS also argues that it owes no duty to Plaintiff because the assault and battery against Plaintiff was not highly foreseeable, citing Ann M. v. Pacific Shopping Center (1993) 6 Cal.4th 666, 674, disapproved on other grounds, Reid v. Google, Inc. (2010) 50 Cal.4th 512, 522-523.) However, that case is distinguishable as it involved the duty of a landowner to provide security guards in common areas, not the duty of a security guard service to provide security. (Id. at p. 679 [“[W]e conclude 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.”].)
The applicable rule regarding the relationship between foreseeability and duty was set out by the Supreme Court in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, upon which Ann M. v. Pacific Shopping Center relied. In Isaacs, the Supreme Court stated:
[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases 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.
(Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 125.)
Applying this rule, the Ann M. court reasoned that requiring a landowner to hire security guards was a substantial burden because the monetary costs and social costs of doing so would be high. Thus, a higher degree of foreseeability was required to impose the duty of hiring security guards on a landowner. (See Ann M. v. Pacific Shopping Center, supra, 6 Cal.4th at p. 679.)
By contrast, all that Plaintiff seeks to do here is to impose on UPS a duty to provide the security services it was already required to provide under its contract with UBM, and to meet the stated purpose of protecting “life and property.” Imposing such a duty on UPS involves little or no additional burdens and thus, a lower level of foreseeability is required.
The court is also mindful of the admonishment of Isaacs that the court should not rigidly apply a “prior similar incidents” rule to conclude that the absence of past criminal acts made an incident not foreseeable. (Id. at pp. 125-126.) In addition, the Supreme Court made it clear that “foreseeability is but one factor to be weighed in determining whether a landowner owes a duty in a particular case.” (Id. at p. 125.)
In any case, Plaintiff points to daily activity logs from UPS security officers showing that there had been documented issues with trespassers at the Subject Property as far back as January 2017. Thus, the incident that occurred here was, at the least, somewhat foreseeable.
In light of the low level of foreseeability required as well as the evidence of some prior incidents showing foreseeability, the issue is not appropriate for summary judgment or summary adjudication. As the Supreme Court in Isaacs advised, “It is well established that foreseeability is ordinarily a question of fact” that “should ordinarily be determined by a jury.” (Id. at pp. 126 & 135.)
Causation
A security guard breaches this duty when the guard fails to act “as would a reasonable security guard under similar circumstances.” (Marois v. Royal Investigation & Patrol, Inc., supra, 162 Cal.App.3d at pp. 199–200.)
Here, UPS cannot meet burden to show there is no dispute of material fact that it did not breach its duty or that the breach did not cause Plaintiff’s injuries.
UPS submitted the following evidence in support of the instant motion for summary judgment or, in the alternative, summary adjudication: the Declaration of Carl Basile, to which was attached copies of Plaintiff’s Third Amended Complaint and the Declaration of Thanh Ha. (See ROA #299.)
Carl Basile is UPS’ counsel and his declaration serves only to lay a foundation for the attached documents. Basile’s declaration contains no relevant facts based on personal knowledge.
Although Thanh Han’s declaration asserts in paragraphs 9-14 that UPS did not breach its duty and did not cause Plaintiff’s injuries, his statements are conclusory and lack foundation. (See Han Decl., ¶¶ 1 & 9-14.) Han also does not affirmatively show how he had personal knowledge of the facts stated. (Ibid.)
Additionally, UPS failed to establish that the alleged assailant could not have gained entry into the Subject Building by means of a defective door sensor. As Plaintiff points out, video footage shows that Gonzalez had attempted to enter other offices earlier but was unsuccessful because the doors were locked, but had somehow entered through a street side entrance to the Subject Building prior to assaulting the Plaintiff.
UPS cannot prevail based solely on a “no evidence” theory of summary judgment, (see Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891), and there are material disputes of fact regarding whether UPS breached its duty and whether that caused Plaintiff’s injuries.
Negligent Supervision Cause of Action
The second cause of action for negligent supervision alleges UPS negligently failed to supervise its security officers, including failing to ensure that the security officers responsible for patrolling the Subject Premises after hours were in fact doing so. (TAC, ¶ 54.)
UPS contends there is no evidence that UPS knew or should have known that any guard was unfit or incompetent. (UPS Separate Statement number 17; Han Decl., ¶ 15.)
However, simply pointing out that the plaintiff does not currently have sufficient evidence to support a claim is not enough. The defendant must present some evidence of its own or prove that the plaintiff does not possess, and cannot reasonably obtain, evidence necessary to support an asserted claim. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855 & fn. 23; Gaggero v. Yura, supra, 108 Cal.App.4th at pp. 889-891.)
This is particularly true as Plaintiff points to circumstantial evidence of a failure of supervision and/or training, including testimony from another UBM employee that she did not see the UPS roving security officer between midnight and 2:00 am on the night of the assault, that the UPS officers were not spending 20-30 minutes on site as required by the contract between UBM and UPS, and that the UPS security officer on duty on the night of the assault resigned his position.
Here, UPS has failed to present
evidence of its own or to establish Plaintiff cannot reasonably obtain
evidence to show UPS knew or had reason to believe its security officers were
unfit or that UPS failed to use reasonable care to discover an employee’s
unfitness.
Negligent Failure to Warn, Train, or Educate Cause of Action
The third cause of action for negligent failure to warn, train, or educate alleges UPS negligently failed to warn any patrons and/or janitorial workers of previous security breaches or attacks and failed to train its security officers. (TAC, ¶ 64.)
UPS argues that summary judgment or summary adjudication is appropriate as to this cause of action because UPS owed no duty to Plaintiff and Plaintiff has filed to present evidence that UPS had knowledge of the dangers it was required to warn others about. The court has already rejected both arguments above.
Premises Liability
The sixth cause of action sounds in premises liability. “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
UPS contends that it has never owned, leased, occupied, or controlled the Subject Premises. (Han Decl., ¶¶ 3-4.) As an employee and Client Manager for UPS, Han has a basis for making these statements and personal knowledge of these facts. While Han’s declaration does not go into greater detail, it is not clear what additional specifics can be given about the absence of a fact than to state the absence.
In response, Plaintiff contends that it is possible that UPS had some control over the Subject Premises. However, Plaintiff points to no facts or evidence to support this contention. Plaintiff only points to the fact that UPS had discretion with respect to method and manner of providing its services, that Quintana had no control over how UPS provided its services, and that UPS had control over the security for the Subject Premises. None of this shows that UPS had control over the Subject Premises itself.
Plaintiff shall give notice of this ruling.