Judge: William A. Crowfoot, Case: 20STCV36887, Date: 2022-08-18 Tentative Ruling

Case Number: 20STCV36887    Hearing Date: August 18, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On September 25, 2020, Plaintiffs Darnell Easley (“Easley”) and Shelita Walker (“Walker”) (collectively “Plaintiffs”) filed this action against Defendant Ardis L. Herd, Sr. (“Defendant”).  On April 1, 2021, Plaintiffs filed the operative First Amended Complaint (“FAC”) against Defendant for (1) premises liability, (2) general negligence, and (3) loss of consortium.

On May 27, 2022, Defendant filed a motion for summary judgment.  Plaintiffs filed opposition papers on August 4, 2022.  Defendant filed reply papers on August 11, 2022.

II.          FACTUAL BACKGROUND

On or about September 28, 2018, Plaintiff Easley was a guest at 1300 S. Stoneacre Ave., Compton, CA 90221 (“Property”).  (Complaint, Prem.L-1, GN-1.)  The Property was owned by Defendant.  (Id.)  While on the Property, Plaintiff Easley was shot while inside the garage, which was allegedly insufficiently secured or closed for Plaintiff’s protection.  (Id.)

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         EVIDENTIARY OBJECTIONS

Defendant has submitted evidentiary objections with his reply.  A review of Defendant’s evidentiary objections shows that while Defendant purports to object to evidence, the material objected to is actually to Plaintiffs’ additional material facts, not to specific pieces of evidence.  The Court of Appeal in Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1 found that objections interposed into the separate statement are improper because the separate statement is focused on individual facts, which may be supported by the same or different pieces of evidence, and such objections defeat the goal of allowing the trial court to quickly and efficiently determine what particular piece of evidence is admitted and what is not.  (Hodjat, supra, 211 Cal.App.4th at 9.)  While Defendant’s objections are not made within the separate statement, the objections are improper to the extent they are made to Plaintiffs’ additional material facts rather than specific pieces of evidence.   

Further, CRC rule 3.1354 requires a party making written objections to evidence to submit a proposed order the includes places for the court to indicate whether it has sustained or overruled each objection and a place for the signature of the judge.  (Cal. Rules of Court, rule 3.1354, subd. (c).)  CRC rule 3.1354(c) identifies the mandatory format for the proposed order.  A court must rule on the individual objections only when they are timely and in the proper form.  (Demos v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.)  Defendant has failed to submit a proposed order and thus failed to comply with CRC rule 3.1354.

As Defendant has failed to comply with CRC rule 3.1354 and the objections are otherwise improperly to Plaintiffs’ additional material facts and not specific pieces of evidence, the Court declines to rule on Defendant’s objections.

V.           DISCUSSION

Defendant moves for summary judgment in his favor and against Plaintiffs on the causes of action asserted against him in the operative FAC.

A.   First Cause of Action for Premises Liability and Second Cause of Action for General Negligence

Defendant argues these causes of action fail because (1) he had no duty to prevent the incident because he had no knowledge of prior similar incidents of violent crime and (2) the shooting was an intervening cause of Plaintiff Easley’s injuries.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  

Here, the premises liability and general negligence claims are based on Defendant’s purported negligent maintenance of the Property that led to Plaintiff being shot while inside the garage on Defendant’s Property.  Specifically, Plaintiffs allege the garage was insufficiently secured or closed for Plaintiff Easley’s protection.

          1. Duty of Care

“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.)  The existence and scope of duty are legal questions for the court.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36.)  

“[T]he 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.’”  (Williams, supra, 37 Cal.App.5th at 663-64 (quoting Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674).)  “‘[T]he question of the scope of the 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.’”  (Id. at 664 (quoting Ann M., supra, 6 Cal.4th at 678).)  “Where ‘ ‘ ‘the burden of preventing future harm is great, a high degree of foreseeability may be required’ ’ ’ [citation] 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.’ ’ ’ ”  (Id. (quoting Ann M., 6 Cal.4th at 678-79).)  “‘[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.’”  (Id. (quoting Ann M., 6 Cal.4th at 679) (alteration in original).)

“The standard is that ‘imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability.’”  (Williams, supra, 37 Cal.App.5th at 665 (quoting Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243).)  “So ‘[i]n circumstances in which the burden of preventing future harm caused by third party criminal conduct is great or onerous (as when a plaintiff, such as in Ann M., asserts the defendant had a legal duty to provide guards . . .), heightened foreseeability—shown by prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location—will be required.’”  (Id. (quoting Delgado, supra, 36 Cal.4th at 243-44, fn. 24).)  “‘By contrast, in cases in which harm can be prevented by simple means or by imposing merely minimal burdens, only ‘regular’ reasonable foreseeability as opposed to heightened foreseeability is required.’”  (Id. (quoting Delgado, supra, 36 Cal.4th at 243-44, fn. 24).) 

In assessing whether the landlord has a duty in cases where third party criminal conduct is involved, courts have used the following analysis:

“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 . . . 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.”

(Williams, supra, 37 Cal.App.5th at 667 (quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214).)  “While ‘other Rowland factors may come into play in a given case, . . . the balance of burdens and foreseeability is generally primary to the analysis.’”  (Id. (quoting Castaneda, supra, 41 Cal.4th at 1214).)

          Defendant asserts that Plaintiff’s suggestions regarding measures to be taken are a fence and/or security camera.  (Motion, p. 6:25-27.)  Defendant’s assertion appears to be based on Plaintiffs’ response to Special Interrogatories No. 12, which asked Plaintiffs to identify each unsafe condition that caused the alleged injury.  (Motion, Snyder Decl., ¶ 4, Ex. B, Special Interrogatory No. 12.)  Plaintiffs’ response to Special Interrogatory No. 12 was “[n]o security cameras, no fence, and an unsecure [sic] property.”  (Id., Ex. B, Plaintiffs’ Response to Special Interrogatory No. 12.)  However, despite this response, based on the complaint and Plaintiffs’ opposition, it appears the primary measure Plaintiffs are asserting Defendant should have taken to prevent the harm was to close the garage door.  The Court will thus focus on the burden of this measure.

          The Court finds that the burden of closing the garage door to prevent harm is minimal.  In fact, Defendant testified during his deposition that he would normally close the garage door when he has the TV on in the garage.  (Forstrom Decl., ¶ 2, Ex. 1, Deposition of Ardis L. Herd, Sr., p. 20.)  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.)

          The Court finds it was not foreseeable that, by not closing the garage door completely, someone would shoot inside the garage or otherwise attempt to harm someone inside the garage.  It is undisputed that there had been no emergency calls related to shootings into inhabited dwellings at the Property or in the reporting district where the Property was located.  (Plaintiffs’ Separate Statement, No. 10.)  While Defendant testified at his deposition that he hears gunshots “a couple of times a week . . . within four or five blocks,” that this has happened for “the last 15, 20 years,” and that he was aware there were gangs in the neighborhood, this is insufficient to show that it was foreseeable someone would shoot inside Defendant’s garage or otherwise attempt to harm someone inside of Defendant’s garage when there is no evidence of any prior shootings on Defendant’s Property or the surrounding area or even prior incidences of crimes on Defendant’s Property.  (Forstrom Decl., ¶ 2, Ex. 1, Deposition of Ardis L. Herd, Sr., pp. 28-29, 32.)  Defendant’s deposition testimony that he was aware of burglaries in the neighborhood and had bars on his doors and windows is also insufficient to demonstrate foreseeability when there is no evidence any burglary happened on his Property or that any burglaries in the neighborhood resulted in injuries.  (Id., pp. 29-30.)  The Court notes that the bars on the doors and windows appear to be protection against burglaries as opposed to potential shootings as Defendant testified that he felt safe to take the bars off the windows because the bars would not stop any gunshots and Plaintiff Easley’s answer to Form Interrogatory No. 17.1 with respect to Request for Admissions No. 7 refers to the doors and windows with bars as “security burglar metal doors” and “security burglar window bars.”  (Id., p. 29; Motion, Snyder Decl., ¶ 5, Ex. C, Plaintiff Darnell Easley’s Responses to Form Interrogatories Set Two, No. 17.1(4).)  That Plaintiff considered the area dangerous and testified someone once said during a meeting that the garage door should be closed because it is not safe to leave it open are also insufficient to demonstrate foreseeability absent evidence of prior incidents of a shooting or other violent crime on Defendant’s Property.  (Id., ¶ 3, Ex. 2, Deposition of Darnell Easley, pp. 24, 53.)

          Given it was unforeseeable that someone would shoot inside of Defendant’s garage or otherwise try to harm someone inside of Defendant’s garage, the Court finds Defendant owed no duty of care to protect against third party criminal conduct by closing the garage door.

          2. Causation

Defendant contends that the shooting was an intervening cause that precludes Defendant’s liability.

Causation is ordinarily a question of fact.  (Constance B. v. State of California  (1986) 178 Cal.App.3d 200, 207.)  However, causation can be a question of law if the material facts show lack of breach or causality.  (Id.)

As discussed, Defendant owed no duty of care to Plaintiffs to protect against third party criminal conduct by closing the garage door.  Under these circumstances, the Court finds that, as a matter of law, Plaintiffs cannot establish causation.

          As Defendant owed no duty of care to protect against third party criminal conduct by closing the garage door and Plaintiff cannot establish causation as a matter of law, Defendant is entitled to judgment on the first and second causes of action.

B.   Third Cause of Action for 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.)

As Defendant is entitled to judgment on the first and second causes of action, Defendant is also entitled to judgment on the third cause of action.

VI.     CONCLUSION

          In light of the foregoing, Defendant’s Motion for Summary Judgment is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.