Judge: Walter P. Schwarm, Case: 30-2021-01200608, Date: 2022-11-01 Tentative Ruling
Defendant’s (Garden Grove Plaza, LLC) Motion for Summary Judgment (Motion), filed on 5-17-22 under ROA No. 36, is DENIED.
Plaintiff’s (Thi Nguyen) Objections to Defendant’s Evidence filed on 9-7-22 under ROA No. 66 are SUSTAINED as to Exhibits B, C, and D, and Objection Nos. 6-25 based on hearsay and lack of foundation. The court declines to rule on Objection Nos. 26, 27, and 28 as immaterial to the court’s ruling. (See, People v. Sanchez (2016) 63 Cal.4th 665, 676-677 and 685-686 and Code Civ. Proc., § 437c, subd. (q).)
The court DENIES Plaintiff’s Request for Judicial Notice, filed on 9-7-22 under ROA No. 64, as immaterial to the court’s decision as set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)
Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that 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 that cause of action. 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.”
Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 850-851 (Aguilar), states, “Second, and generally, the 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. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in Aguilar; Footnotes 13 and 14 omitted.)
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757 (Cole), provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”
Quiroz v. Seventh Ave. Center (2006) 140 Cal.App. 4th 1256, 1263 (Quiroz) provides, “ ‘The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. [Citations.] [Citation.]’ ” “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. [Citation.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 (Kesner).) “The question whether a duty exists is to be resolved by the court, not a jury. [Citation.] Courts have determined that an actor has no legal duty to avoid harm that is not foreseeable. ‘The duty of a proprietor of a business establishment to business invitees generally includes a “duty to take affirmative action to control the wrongful acts of third persons [that] threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” [Citation.]’ [Citation.]” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1533.)
Morris v. De La Torre (Morris) (2005) 36 Cal.4th 260, 264, states, “In order to prevail in an action based upon a defendant’s alleged negligence, a plaintiff must demonstrate that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of his or her injuries. [Citation.] “As a general matter there is no duty to act to protect others from the conduct of third parties.” [Citation.] 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. [Citations.] [¶] As we also observed in Delgado, ‘[c]ourts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.’ [Citations.]” (Id., at p. 269.) “Finally, as we explained in Delgado, even if a proprietor, such as the bar in that case, has no special-relationship-based duty to provide security guards or other similarly burdensome measures designed to prevent future criminal conduct (which measures are required only upon a showing of ‘heightened foreseeability’), such a proprietor nevertheless owes a special-relationship-based duty to undertake reasonable and minimally burdensome measures to assist customers or invitees who face danger from imminent or ongoing criminal assaultive conduct occurring upon the premises. In this regard, we noted in Delgado that restaurant proprietors owe a special-relationship-based duty to provide ‘ “assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act” ’ ” (Delgado, supra, 36 Cal.4th at p. 241, 30 Cal.Rptr.3d 145, 113 P.3d 1159, and, more to the point, with respect to imminent or ongoing criminal assaultive conduct occurring in the proprietor’s presence, such proprietors have a duty to warn or ‘take other reasonable and appropriate measures to protect patrons or invitees. . . .’ [Citations.]” (Id, at p. 270; Italics in Morris.) “In any event, as the Court of Appeal below observed, foreseeability analysis in a case such as this—involving a proprietor’s duty to respond reasonably to criminal conduct that is imminent or even ongoing in his or her presence—contrasts fundamentally with the type of foreseeability at issue in cases such as Ann M., which involve a proprietor’s duty to take preventative measures to guard against possible future criminal conduct. When, as in Taylor, supra, 65 Cal.2d 114, 123–125, 52 Cal.Rptr. 561, 416 P.2d 793, Delgado, supra, 36 Cal.4th at pages 245-246, 30 Cal.Rptr.3d 145, 113 P.3d 1159, or Johnston, supra, 610 So.2d 1119, 1121–1122, assaultive conduct is imminent—or when, as in the present case, it is actually occurring in plain view—'it requires no mastery of metaphysical philosophy or economic risk analysis to appreciate the strong possibility of serious injury’ to persons against whom such imminent or ongoing criminal conduct is aimed. [Citation.] Defendant’s employees, like the establishments’ employees in Taylor, Delgado, and Johnston, readily could foresee the immediate danger posed to plaintiff and his companions.” (Id, at p. 271; Italics in Morris.)
Delgado v. Trax Bar & Grill (Delgado) (2005) 36 Cal.4th 224, 245, provides, “Although the record refers to a few prior altercations between patrons, we agree with the conclusion of the Court of Appeal below that plaintiff produced insufficient evidence of heightened foreseeability in the form of prior similar incidents or other indications of a reasonably foreseeable risk of a violent criminal assault on defendant’s premises that would have imposed upon defendant an obligation to provide any guard, or additional guards, to protect against third party assaults. But the absence of heightened foreseeability in this case merely signifies that defendant owed no special-relationship-based duty to provide guards or undertake other similarly burdensome preventative measures; it does not signify that defendant owed no other special-relationship-based duty to plaintiff, such as a duty to respond to events unfolding in its presence by undertaking reasonable, relatively simple, and minimally burdensome measures. Indeed, the record clearly establishes the existence of such a minimally burdensome duty here.” (Italics in Delgado.)
CACI No. 1005, as modified, states, “An owner of a business that is open to the public . . . must use reasonable care to protect patrons/guests/tenants from another person’s criminal conduct on its property if the owner can reasonably anticipate that conduct.”
First, Defendant contends that Defendant did not owe a duty to Plaintiff. (Motion; 12:13-19:6.) Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948, 958 (Walker), states, “Duty, of course, is an essential element of a negligence cause of action. The elements of a cause of action for negligence are ‘ “ ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach [was] the proximate or legal cause of the resulting injury.’ ” [Citation].’ [Citation.] The existence and the scope of a duty of care in a given factual situation are issues of law for the court. [Citations.] ‘Since the existence of a duty of care is an essential element in any assessment of liability for negligence [citations], entry of summary judgment in favor of the defendant in a negligence action is proper where the plaintiff is unable to show that the defendant owed such a duty of care.’ [Citation.] The determination that a legal duty is owed in a particular set of circumstances is ‘ “ ‘only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ ” ’ [Citation.]” (Italics in Walker; Footnote 7 omitted.)
Since the court sustained the evidentiary objections as discussed above, Defendant has not provided the underlying factual situation that would allow the court to assess whether Defendant owed a duty to Plaintiff.
Second, Defendant contends that it did not breach any duty to Plaintiff. (Motion; 21:18-22:12.) Since the court sustained the evidentiary objections as discussed above, Defendant has not provided the underlying factual situation that would allow the court to assess whether Defendant breached a duty to Plaintiff.
Third, Defendant contends that Plaintiff cannot establish causation. Since the court sustained the evidentiary objections as discussed above, Defendant has not provided the underlying factual situation that would allow the court to assess whether Defendant caused Plaintiff’s harm.
Based on the above, the court DENIES Defendant’s (Garden Grove Plaza, LLC) Motion for Summary Judgment filed on 5-17-22 under ROA No. 36.
Plaintiff is to give notice.