Andrade v. Guys & Dolls

 

 

 

 

 

 

 

 

 

Filed 12/4/13  Andrade v. Guys & Dolls CA2/4

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>NOT TO BE
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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 
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CLAUDIA ANDRADE et al.,                     Plaintiffs and Appellants,   v.   GUYS & DOLLS, LLC et al.,                   Defendants and Respondents.	B244265       (Los Angeles County       Super. Ct. No. SC111587)

 

          APPEAL from a judgment of the Superior
Court of Los
Angeles, Norman P. Tarle, Judge. 
Affirmed.

          The Mandell Law Firm, Robert J.
Mandell and Mara E. J. Burnett for Plaintiff and Appellant.

          Chapman, Glucksman, Dean, Roeb &
Barger, Arthur J. Chapman and Aneta B. Dubow for Defendants and Respondents
Guys & Dolls, LLC, Jason Rimokh and Michael Sutton.

          Prindle, Amaro, Goetz, Hillyard,
Barnes & Reinholtz, Michael L. Amaro and Sanaz Cherazaie for Defendant and
Respondent Champion Personal Services, LLC.

          In the underlying action, appellant
Claudia Andrade asserted claims for wrongful
death and negligent infliction of emotional distress against respondents  -- the
operators of a nightclub and its security guards -- alleging that they negligently
failed to protect her husband, who died while working as a parking valet near the
nightclub.  The trial court granted respondents’
summary judgment motions, concluding that they had no duty to protect
appellant’s husband, and that their conduct was not a substantial factor in the
causation of his death.  At the hearing
on the motions, the court also denied appellant’s request for a continuance to
conduct further discovery.  We reject
appellant’s challenges to these rulings, and affirm.

 

RELEVANT
PROCEDURAL BACKGROUND

          There are no disputes regarding the
following facts:  In July 2010,
respondents Jason Rimokh and Michael Sutton controlled respondent Guys and
Dolls, LLC (Guys and Dolls), which operated the Guys and Dolls nightclub in West Hollywood (collectively, the Guys and Dolls
parties).  Respondent Champion Personal
Services, Inc. (CPS), provided unarmed security guard services for the
nightclub.  Appellant’s husband, Juan
Gabriel Camargo Cortez, worked as a parking valet for Express Regency Valet
Parking, which provided services to the nightclub.href="#_ftn1" name="_ftnref1" title="">^[1] 
At 2:00 a.m. on July 19, 2010, the nightclub closed for the
night.  Shortly afterward, Camargo died
as the result of a shooting that occurred in front of the nightclub.

          On February 23, 2011, appellant Claudia
Andrade initiated the underlying action against the Guys and Dolls parties.  On her own behalf and as guardian ad litem of
her children, she asserted claims for wrongful death and negligent infliction
of emotional distress.  In April 2011,
Berkshire Hathaway Homestate Companies (Berkshire) filed a complaint in
intervention as the worker’s compensation insurer for Camargo’s employer,
seeking to recover death benefits paid to appellant.  In late 2011, appellant’s and Berkshire’s
complaints were amended to name CPS as a “Doe” defendant.

          In December 2011, the Guys and Dolls
parties filed a motion for summary judgment, contending they owed no duty to Camargo
to protect him from the shooting.  Later,
in May 2012, CPS filed a motion for summary judgment or adjudication, asserting
that it also owed no duty of protection to Camargo, and that its conduct was
not a substantial factor in causing his death. 
On August 16, 2012, following a hearing, the trial court granted the
motions for summary judgment.  On
September 7, 2012, judgments of dismissal were entered in favor of respondents
and against appellant.  This appeal
followed.href="#_ftn2" name="_ftnref2"
title="">^[2] 

           

DISCUSSION

          Appellant contends summary judgment was
improperly granted on her complaint.  For
the reasons explained below, we disagree.

 

          A. Standard
of Review

            “On appeal after a motion for summary judgment has been
granted, we review the record de novo, considering all the evidence set forth
in the moving and opposition papers except that to which objections have been
made and sustained.  [Citation.]”  (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)  Generally, “[s]ummary judgment is proper if
there is no triable issue of material fact and the moving party is entitled to summary
judgment as a matter of law.  (Code Civ.
Proc., § 437c.)”  (National Auto. & Cas. Ins. Co. v. Underwood (1992) 9
Cal.App.4th 31, 36.)  In moving for summary
judgment, “all that the defendant need do is to show that the plaintiff cannot
establish at least one element of the cause of action -- for example, that the
plaintiff cannot prove element X.”  (>Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850, 853 (Aguilar).)

          Although we independently assess a
grant of summary judgment (Lunardi v.
Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819), our review
is subject to two constraints.  Under the
summary judgment statute, we examine the evidence submitted in connection with a
summary judgment motion, with the exception of evidence to which objections
have been appropriately sustained.  (>Mamou v. Trendwest Resorts, Inc. (2008)
165 Cal.App.4th 686, 711; Code Civ. Proc., § 437c, subd. (c).)  Moreover, our review is governed by a
fundamental principle of appellate procedure, namely, that “‘[a] judgment or
order of the lower court is presumed correct,’” and thus, “‘error must be
affirmatively shown.’”  (>Denham v. Superior Court (1970) 2 Cal.3d
557, 564, italics omitted, quoting 3 Witkin, Cal. Procedure (1954) Appeal, §
79, pp. 2238-2239.)  Appellant thus bears
the burden of establishing error on appeal, even though respondents had the
burden of proving their right to summary judgment before the trial court.  (Frank
and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.)  For this reason, our review is limited to
contentions adequately raised in appellant’s briefs.  (Christoff
v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)  

          The two constraints narrow the scope
of our inquiry.  Here, respondents raised
numerous evidentiary objections to the showing proffered by appellant and
Berkshire, which the trial court sustained in part and overruled in part.  Because appellant does not challenge these
rulings on appeal, she has forfeited any contention of error regarding them.

          Appellant has also forfeited any contention
that summary judgment was improper with respect to her claims, to the extent she
fails to challenge the ruling regarding those claims.  Because appellant does not separately discuss her
claim for negligent infliction of emotional distress, our review does not
examine it independently of her href="http://www.sandiegohealthdirectory.com/">wrongful death claim.  (Wall Street
Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177; >Yu v. Signet Bank/Virginia (1999) 69
Cal.App.4th 1377, 1398; Reyes v. Kosha
(1998) 65 Cal.App.4th 451, 466, fn. 6.)

 

          B.  Governing
Principles

          The principal issues before us concern
a business’s duty to deploy armed security guards or similar security measures,
and the showing required to establish that a breach of that duty caused the
plaintiff’s alleged injuries.

 

1.     > Scope of a Business’s Duties

          Generally, a business’s duty to
maintain its premises includes duties based on its “special relationship” with invitees,
patrons, and tenants.  (>Delgado v. Trax Bar & Grill (2005)
36 Cal.4th 224, 229, 234-241 (Delgado);
Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666 (Ann M.),
disapproved on another ground in Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5; see Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188-1199 (>Sharon P.), disapproved on other grounds
in Aguilar, supra, 25 Cal.4th at p. 854, fn. 19, and Reid v. Google, Inc., supra,
50 Cal.4th at p. 527, fn. 5; Castaneda v.
Olsher (2007) 41 Cal.4th 1205, 1213 (Castaneda).)  Although there is ordinarily no duty to
protect others from the conduct of third parties, a proprietor’s “special
relationship” with invitees, patrons, and tenants creates an affirmative duty
to protect them from third party misconduct. 
(Delgado, supra, 36 Cal.4th at pp. 229, 234-241.)  Under this doctrine, businesses are obliged
to take reasonable measures to shield the invitees, tenants, and patrons from
injurious third party conduct.  (>Ibid.) 
In each case, the existence and scope of the duty “is a question of law
for the court to resolve.”  (>Castaneda, supra, 41 Cal.4th at p. 1213.) 


          For purposes of a proprietor’s duties,
invitees ordinarily include “‘business visitor[s]’” that is, persons “‘invited
to enter or remain on land for a purpose directly or indirectly connected with
business dealings with the possessor of the land’” (O’Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 737, quoting
Restatement Second of Torts, § 332, subsection (3).)  Here, the term “‘business visitor’” may encompass
workers employed by businesses independent of the proprietor or landowner.  (See O’Keefe
v. South End Rowing Club, supra,
64 Cal.2d at p. 737 [repair and delivery workers]; Hinds v. Wheadon (1942) 19 Cal.2d 458, 460 [employee of independent
contractor hired by landowner]; Jenson v.
Kenneth I. Mullen, Inc. (1989) 211 Cal.App.3d 653, 657-658 [employees of
business hired by landowner].)    

          In addition, a proprietor may breach
the duty to protect even though the injurious third party conduct occurred on
property not owned or leased by the proprietor. 
A proprietor must take reasonable protective measures regarding property
under the proprietor’s control, regardless of whether the proprietor owns or
leases the property.  (>Morris v. De La Torre (2005) 36 Cal.4th
260, 274; Southland Corp. v. Superior
Court (1988) 203 Cal.App.3d 656, 664-669.) 
This rule encompasses public land over which the proprietor exercises
control.  (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1170-1171.) 

          As our Supreme Court explained in >Castaneda, a balancing test determines
the scope of a proprietor’s duty to protect invitees, patrons, and tenants from
third party misconduct.  (>Castaneda, supra, 41 Cal.4th at p. 1214.) 
“‘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 . . . .  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 (on a continuum from a mere possibility to
a reasonable probability) 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.’”  (Id.
at p. 1214, quoting Vasquez v.
Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 285.)

          In Ann
M., Sharon P., and >Delgado, the Supreme Court examined the circumstances
under which a business may be required to hire security guards or implement
similar security measures.

 

a.       Ann M.

      In
Ann M., a shopping mall provided no
security guards, even though its tenants complained that transients loitered in
the mall’s common areas.  (>Ann M., supra, 6 Cal.4th at pp. 670-673.) 
After a tenant’s employee was raped inside the tenant’s store, she
initiated a negligence action against the mall. 
(Id. at pp. 670-671.)  When the mall sought summary judgment on the
ground that it lacked a duty to protect the employee, she maintained that
violent crimes had occurred within the mall, but offered no evidence that the
mall had notice of those incidents.  (See
id. at pp. 679-680.) 

      In holding that
the mall had no duty to hire security guards, the Supreme Court explained that
the scope of a landlord’s duty “is determined in part by balancing the
foreseeability of the harm against the burden of the duty to be imposed.”  (Ann M.,
supra, 6 Cal.4th at p. 678, quoting >Isaacs v. Huntington Memorial Hospital
(1985) 38 Cal.3d 112, 125.)  Because the
social costs of requiring landlords to hire private guards are “not
insignificant[,] . . . 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.”  (>Ann M., supra, at p. 679.)  In contrast,
when “‘“harm can be prevented by simple means, a lesser degree of
foreseeability may be required.”’”  (>Ibid.) 
Under these principles, the foreseeability of crimes warranting the hiring
of security guards or similarly costly measures can “rarely, if ever,” be
proven, absent notice to the landlord of prior similar incidents.  (Ibid.)  In a footnote, the court clarified the
qualification to the “prior similar incident[]” standard, stating:  “It is possible that some other circumstances
such as immediate proximity to a substantially similar business establishment
that has experienced violent crime on its premises could provide the requisite
degree of foreseeability.”  (>Ibid., fn. 7.) 

b.      Sharon
P.

      In >Sharon P., the plaintiff was a tenant in
an office building, and parked her car in an underground parking structure
reserved for the building’s tenants.  (>Sharon P., supra, 21 Cal.4th at p. 1185.)  After the plaintiff was sexually assaulted in
the garage, she asserted negligence claims against the building’s owner and the
supplier of parking services.  (>Id. at pp. 1185-1186.)  In seeking summary judgment on the claims,
the defendants maintained that they had no duty to make the garage more secure
because no similar incidents had occurred within the parking structure.  (Ibid.)   

      The Supreme Court
concluded that the defendants had no duty to hire security guards for the
parking structure, as there had been no reported incidents of crime within the
parking structure for a ten-year period, and the only incidents of crime on the
premises consisted of seven bank robberies on the street level of the office
building.  (Sharon P., supra, 21
Cal.4th at p. 1195.)  The court rejected
the view that the parking structure was “‘so inherently dangerous’” that the
defendants were required to hire guards despite the absence of prior similar crimes,
observing that there was no evidence that underground parking structures were
inherently more dangerous than other types of commercial premises.  (Id.
at pp. 1191-1192.)       

                         

c.      Delgado

      In >Delgado, the defendant bar employed two
security guards, one positioned inside the bar, and the other in the bar’s
parking lot.  (Delgado, supra, 36 Cal.4th at p. 230.)  The plaintiff and his wife visited the bar,
where four or five other patrons stared at him in an aggressive manner.  (Id.
at pp. 230-231.)  Fearful that the
staring presaged a fight, the plaintiff pointed it out to the bar’s guards and
left the bar with his wife.  (>Id. at p. 231.)  As they walked to the bar’s parking lot, they
were followed by the menacing patrons, who joined up with other men waiting in
the parking lot.  (Id. at pp. 231-232.)  When
the men began to assault the plaintiff, he ran out of the parking lot and
across the street to divert the attackers from his wife.  (Id.
at pp. 231-232, fn. 6.)  The attackers
followed and beat him with a baseball bat.  (Ibid.)  After the plaintiff prevailed in his
negligence suit against the bar, the bar appealed, contending it had no duty to
provide security guards, and thus could not be liable for the plaintiff’s
injuries.  (Id. at p. 233.)

          The Supreme Court explained that a
business is ordinarily obliged to maintain guards in an area of its premises
only when there is a heightened foreseeability of criminal activity, as shown
by a history of similar criminal incidents. 
(Delgado, supra, 36 Cal.4th at pp. 236-240.) 
Under that standard, “[h]eightened foreseeability is satisfied by a
showing of prior similar
criminal incidents (or other indications of a reasonably foreseeable risk of
violent criminal assaults in that location) and does not require a showing of
prior nearly identical criminal
incidents.”  (Id. at p. 245, italics omitted.) 


          However, even when a business is not
required to hire guards, its special relationship with patrons and invitees may
oblige it to deploy its guards -- if it has any -- to protect patrons and
invitees in reasonable ways.  (>Delgado, supra, 36 Cal.4th at pp. 240-242.) 
The court stated:  “[A] restaurant
or bar proprietor . . . has a duty to warn patrons of known
dangers [citation] and, in circumstances in which a warning alone is
insufficient, has a duty to take other reasonable and appropriate measures to
protect patrons or invitees from imminent or ‘ongoing’name="SDU_158"> criminal conduct. 
[Citation.]  Such measures may
include telephoning the police or 911 for assistance [citation], or protecting
patrons or invitees from an imminent and known peril lurking in a parking lot
by providing an escort by existing security personnel to a car in that parking
lot.  [Citations.]”  (Id.
at p. 241.)

          Applying these principles to the case
before it, the court concluded that the bar had no obligation to hire guards to
protect against third party assaults, as there was evidence of only a few prior
altercations among patrons.  (>Delgado, supra, 36 Cal.4th at p. 237.) 
The court further held that the menacing looks from the plaintiff’s
assailants required its existing guards to take protective actions that were
“reasonable, relatively simple, and minimally burdensome.”  (Id.
at pp. 242-247.)  These measures included
establishing some separation between the plaintiff and the menacing patrons as
the plaintiff left the bar, and ensuring that the guard posted in the parking
lot maintained the separation.  (>Id. at pp. 244-247.)

 

2.      Causation
of Injury

          Even
when a business’s duty to protect encompasses a particular security measure,
the plaintiff must show that its failure to implement that measure was a
substantial factor in causing the plaintiff’s injuries.  (Saelzler
v. Advanced Group 400 (2001) 25 Cal.4th 763, 772-781 (Saelzler).)  As explained in >Saelzler, “‘claims of abstract negligence’” based
on the duty to protect fail when no connection with the alleged injuries is
shown.  (Id. at p. 773, quoting Sharon
P., supra, 21 Cal.4th at pp.
1196-1197.)  There, the plaintiff worked for a
delivery service, and attempted to deliver a package to an apartment complex
located in a high-crime district.  (>Id. at p. 769.)  The complex lacked security guards, and its
security gate was propped open when the plaintiff entered the complex.  (Ibid.)  Within the complex, three assailants attempted to
rape her, and fled.  (>Ibid.)  Following the incident, the plaintiff was
unable to identify her assailants.  (>Ibid.)  When the plaintiff sued the building’s owners for negligence,
the trial court granted summary judgment in their favor because there was no
evidence that any breach of their duty to safeguard the plaintiff caused her
injuries.  (Id. at p. 771.) 

          In
affirming summary judgment, the Supreme Court concluded that because there was
no evidence that the assailants were trespassers within the apartment complex,
the plaintiff failed to show that the defendants’ failure to provide guards and
lock the security gates was a substantial factor in the causation of the
plaintiff’s injuries.  (>Saelzler, supra, 25 Cal.4th at p. 776.) 
In so holding, the court concluded that the degree of foreseeability sufficient
to establish the duty to provide security measures does not necessarily establish
the element of causation.  (>Id. at p. 777.)  The court also rejected a purported “rule of
common sense” -- namely, that the failure to provide security measures is
necessarily a contributing cause of crimes -- because such a rule “would
prevent summary judgment on the causation issue in every case in which the
defendant failed to adopt increased security measures . . . .”  (Id.
at p. 778, italics omitted.)     

 

          C.  Respondents’
Evidencehref="#_ftn3" name="_ftnref3"
title="">^[3]>

          In
seeking summary judgment, respondents submitted evidence supporting the
following version of the underlying facts: 
For approximately one year prior to the shooting, Guys and Dolls leased
and operated the nightclub.  During that
period, there were no instances of shootings, armed violence, or assaults at
the nightclub.  However, the City of West
Hollywood required Guys and Dolls to prevent the nightclub’s patrons from
acting in a drunken or obtrusive manner that created a nuisance for the
neighborhood.   

          To
ensure compliance with that requirement and alcohol-related laws, and to
provide security for patrons and invitees, Guys and Dolls hired CPS to provide
unarmed security guard services.  For
Thursdays, Fridays, and Saturdays, Guys and Dolls asked CPS to supply six to
eight guards.  For Sundays, when the
nightclub hosted a special event called “Urban Sunday,” Guys and Dolls
requested 15 guards.  The guards checked
identifications at the door and assisted with crowd control within the
nightclub; in addition, they ensured that patrons left when the nightclub
closed at 2:00 a.m. and did not linger at its entrance.  Guys and Dolls did not require the guards to
patrol the parking lot area or the valet area.       

          Prior
to the shooting on July 19, 2010, CPS developed standard closing procedures for
the “Urban Sunday” event.  At
approximately 1:55 a.m., CPS placed ropes and stanchions in the curbside area
to channel the flow of exiting patrons and prevent them from stepping into the
street.  Two security guards were
positioned in the street to help with the patrons and street traffic.  At 2:00 a.m., two more guards were
positioned near the nightclub’s door to prevent patrons from taking alcoholic
drinks with them.  Shortly after 2:00 a.m., up to
an additional eight guards took positions in front of the nightclub to help
with pedestrians and traffic.   

          In
addition, on Sunday nights, Los Angeles County Sheriff’s Department deputies
often parked patrol cars in front of the nightclub as it closed in order to be
a “‘presence.’”  No specific crime
motivated this practice; their intent was to regulate traffic and crowds.  They also routinely patrolled and parked in
front of other nightclubs and bars in the West Hollywood area.       

          On
Sunday, July 19, 2010, Camargo worked as a parking valet for Express Regency
Valet Parking, which provided services to the nightclub and a nearby Jerry’s
Deli.  CPS assigned 15 guards to the
nightclub.  During the evening, four
guards were positioned at the front door, and three to four other guards took
positions or roamed outside the nightclub. 
When the nightclub closed, CPS followed its standard procedures.

          At
closing time, Roland Perez, a CPS guard, was posted outside the nightclub’s
front door to help with crowd and traffic control.  As the nightclub closed, Perez saw a man walking
toward the nightclub as he crossed the street in front of it.  Once across the street, the man grabbed a
chain from an individual standing outside the nightclub and the nearby Jerry’s
Deli.  A physical altercation began
between the assailant and his victim. 
Perez began walking toward the altercation, and called for assistance
from other CPS guards on his radio.  Within one
minute after the altercation began, the assailant fired several shots from a
gun.  Perez, who was unarmed, took
cover.  The assailant
fled into a waiting vehicle, which drove away.  One of the gunshots
killed Camargo, who was near the nightclub.  The assailant was never identified.

 

          D.  Appellant’s
Showinghref="#_ftn4" name="_ftnref4"
title="">^[4]                  

          Regarding
the circumstances surrounding the shooting, appellant did not materially challenge
Perez’s account of the altercation or identify the assailant.href="#_ftn5" name="_ftnref5" title="">^[5]  Nor did
she provide evidence regarding the identity of the man whose chain the
assailant grabbed.href="#_ftn6"
name="_ftnref6" title="">^[6]  However, appellant submitted evidence that on the
night of the shooting, no deputy sheriffs parked their patrol cars in front of
the nightclub when it closed, as they were busy elsewhere.  In addition, she offered evidence that according
to the nightclub’s security camera recordings, only six guards were outside the
nightclub from 2:00 a.m. until the incident, which occurred at 2:09 a.m. 

          To
raise triable issues regarding respondents’ duty to protect and the adequacy of
their security measures, appellant submitted the nightclub’s conditional use
permit, which required it to provide “adequate security to ensure safety . . . in
the surrounding area,” including “security services to patrol the premises,
monitor the queue of waiting patrons, and maintain orderly movement of
pedestrians.”  Appellant also pointed to evidence
regarding crimes in the nightclub’s area, including an event summary and a “RAPS”
report from the Los Angeles County Sheriff’s Department, which identified
arrests and incidents of potential crime from May 2009 to January 2012.  Additionally, appellant submitted deposition testimony
from three police officers. 

          Los
Angeles County Sheriff’s Department Sergeant Joseph Trimarchi stated that at
the nightclub, minors had been arrested for underage drinking.  In addition, he was aware that in June 2008,
an incident involving the possession of handguns occurred within the nearby
Jerry’s Deli.  However, Trimarchi knew
little about the incident, as a different law enforcement agency responded to it.   

          Deputy
Sheriff Daniel Riordan stated that from 2007 to 2011, he patrolled the
nightclub’s area, and responded to five to ten “fight calls” at the nightclub,
some of which “rose to the occasion of becoming what [the officers] considered
assault with a deadly weapon or grievous bodily injury,” that is, “a felony
type of fight.”  During that period, he
made between 10 and 15 arrests related to the nightclub for underage drinking
and misdemeanor battery.  Riordan also
stated that the “Urban Sunday” event attracted members of a local street gang.  

          Deputy
Sheriff David Hernandez stated that the nightclub had initially attracted
“high-end people,” but went “downhill” and began to attract “a certain
group.”  According to Hernandez, when any
club attracted gang members, deputy sheriffs parked their cars in front of it.  He had responded to three calls regarding the
Guys and Dolls nightclub involving altercations, each of which concerned a
fistfight.href="#_ftn7" name="_ftnref7"
title="">^[7]  He also
recalled that two years before the shooting, the nearby Jerry’s Deli was shut
down temporarily “because there was a guy supposedly with a gun in there.”

 

          E.  Trial
Court’s Rulings

          In
seeking summary judgment, the Guys and Dolls parties contended they had no duty
to protect Camargo, arguing (1) that he was neither a patron nor an invitee of
the nightclub, (2) that the incident did not take place on the nightclub’s
premises, and (3) that there were no prior similar incidents warranting the
implementation of security measures to protect Camargo from a shooting.  In a 21-page ruling, the trial court declined
to address the first two contentions, reasoning that the third contention was
dispositive.  Following a detailed
examination of the police records and other evidence, the trial court concluded
that there were no triable issues regarding the existence of  â€œprior similar incidents” sufficient to impose
a duty to protect Camargo.  As the court
noted, the only prior gun-related occurrence was the June 2008 incident in the
Jerry’s Deli, during which no one was apparently injured.     

          CPS
sought summary judgment on the ground that it had no duty to protect Camargo,
and also maintained that its conduct was not a substantial factor in causing Camargo’s
death.  In granting CPS’s motion for
summary judgment, the trial court relied on its analysis regarding the Guys and
Dolls parties’ duty to protect.  In addition,
the court determined that appellant could not establish the element of
causation, concluding that there was no evidence that positioning more of the
existing guards at the front of the nightclub, or making their presence more
visible, was likely to have prevented the shooting.  The court stated:  “[I]n our case, similarly, the assailant’s
identity is unknown.  It is not known
whether he was a club patron, or whether he was in the area for other
reasons.  Nothing about the assailant is
known, so it would be impossible to know what could have deterred him.  Finding that more security guards at the
[nightclub] would have deterred the assailant would require a jury to engage in
pure speculation and conjecture . . . .”      


 

          F. 
Analysis           

          On appeal, appellant maintains that
the rulings on the summary judgment motions cannot be affirmed on any ground
asserted in the motions.  We conclude
that summary judgment was properly granted on the grounds identified by the
trial court.  As explained below, appellant
failed to show that respondents had a duty to hire armed guards to protect
Camargo from the shooting; in addition, she failed to show the absence of less
burdensome security measures, such as the presence of more of the existing
guards in front of the nightclub, was a substantial factor in causing Camargo’s
death.href="#_ftn8" name="_ftnref8"
title="">^[8]

  
  

1.     > No >Duty to Hire Armed Guards 

In view of >Castaneda, we first identify “‘the
specific measures’” that appellant proposes were required under the purported duty
to protect Camargo.  (>Castaneda, supra, 41 Cal.4th at p. 1214.)  Appellant’s principal contention is that the Guys
and Dolls parties had a duty to provide a specific level of security for Urban
Sunday events -- namely, the level achieved by the presence of the CPS guards >and the deputy sheriffs in their patrol
cars -- even though respondents did not arrange for the presence of the deputy
sheriffs.  According to appellant, to maintain
the requisite level of security, the Guys and Dolls parties were required to
ensure the presence of armed guards when the deputy sheriffs’ patrol cars were
absent.  

In support of
this contention, appellant asserts that the nightclub’s conditional use permit
“effectively mandated” the positioning of guards near the parking valet stand
and “armed patrols.”  She states:  “[S]ecurity guards and armed patrol[s] were
routinely out front by the valet stand at closing time on Urban Sundays . . . . 
[appellant] do[es] not seek extraordinary security measures, but rather only
those measures [respondents] normally had in place.”  She further maintains that respondents had
“grown dependent on armed police patrols for its Urban Sundays events,” and had
neither an armed patrol of their own nor a contingency plan for armed security
on Urban Sundays when the deputy sheriffs were not there.   

          At
the outset, we observe that the nightclub’s conditional use permit did not expressly
mandate the presence of armed patrols or similar measures.  The permit required that “the property be
serviced with adequate security to ensure safety while operating the bar,
and in the surrounding area.  In
addition, it specified that the nightclub must have “security services to
patrol the premises, monitor the queue of waiting patrons, and maintain the
orderly movement of pedestrians.”  Nothing
in the permit established that the requisite “adequate security” necessarily
included armed patrols. 

          We
therefore examine appellant’s proposed security measures under the >Castaneda test.  To begin, the measures would be burdensome,
as they would effectively oblige the Guys and Dolls parties to hire armed patrols
-- or provide additional security measures equivalent to the presence of the
deputy sheriffs -- for Sunday events.href="#_ftn9" name="_ftnref9" title="">^[9]  Nothing before us suggests the Guys and Doll
parties had any control over whether the deputy sheriffs parked in front of the
nightclub.  On the contrary, Deputy
Sheriff Hernandez testified that the deputy sheriffs decided when it was
appropriate to maintain a “presence” in front of a nightclub.  Accordingly, to ensure the presence of armed
patrols (or other measures equivalent to armed patrols), the Guys and Dolls
parties would have to hire armed patrols (or supply the equivalent measures).

          Because
the proposed measures would be burdensome, their imposition requires a high degree of
foreseeability
of criminal activity, as shown by prior similar incidents of which
respondents had notice.  (>Delgado, supra, 36 Cal.4th at pp. 236-240; Ann
M.,
supra, 6 Cal.4th at p. 679.)  That was not demonstrated here.  Regarding the shooting that caused Camargo’s
death, the evidence shows only that an unknown assailant crossed the street in
front of the nightclub, tried to take a chain from an unidentified individual standing
on the sidewalk, and fired a gun. 
Nothing in the parties’ showings establishes that either the assailant
or his intended victim was a patron or invitee of the nightclub. 

          We agree with the trial court that the
shooting was materially dissimilar from any other incident that had occurred in
or near the nightclub while the Guys and Dolls parties operated it.  Regarding the nightclub itself, the police
records disclosed that for the 14-month period prior to Camargo’s death, the only
incidents reported were ones involving underage drinking, public intoxication,
failure to check identities, misdemeanor batteries, and misconduct of similar
gravity.  As the trial court remarked, the
incidents appeared to be conduct that the existing security guards could
handle.  Furthermore, regarding the
nightclub’s environs, the sole gun-related incident occurred inside the Jerry’s
Deli over two years before the shooting, but there was no evidence that the gun
was fired or that anyone was injured.  The
record thus shows neither “similar
criminal incidents” nor “other indications of a reasonably foreseeable risk of
violent criminal assaults” sufficient to satisfy the requirement for heightened
foreseeability.  (Delgado, supra, 36
Cal.4th at p. 245, italics omitted.) 

          In
an effort to satisfy that requirement, appellant directs our attention to an
incident involving a taser at the Guys and Dolls nightclub, and a stabbing in
the Rainbow Club, which is located in West Hollywood.href="#_ftn10" name="_ftnref10" title="">^[10]  In addition, appellant notes the evidence
that gang members may have attended the “Urban Sunday” events at the nightclub.  She argues that the presence of gang members,
coupled with the arrests and crimes in and near the nightclub, was sufficient
to warrant the imposition of those measures. 
We disagree. 

          In
our view, the two incidents do not satisfy the “prior similar incidents”
standard.  Regarding the first incident,
the pertinent “RAPS” report states only that in January 2010, the nightclub’s
staff saw a man carrying a taser in front of the nightclub, and the guards “evacuat[ed
the] premises.”  The record otherwise
discloses no evidence that the taser was used, that anyone was injured, or that
an arrest was made.  The incident is thus
unlike the shooting that resulted in Camargo’s death.  

          Regarding
the second incident, Deputy Sheriff Riordan testified that there was a stabbing
at the Rainbow Club “at the very early onset of [his] patrol term” in West
Hollywood, which ran from 2007 to 2011.  In
view of Riordan’s testimony, the incident appears to have occurred well before
the Guys and Dolls parties began operating the nightclub in 2009.  In any event, no evidence was presented that
respondents had notice of the incident. 
Nor was evidence presented that the two clubs were even close to each
other.  Because there was no showing of
notice or that the Guys and Dolls nightclub was “immediate[ly] proxim[ate] to a substantially
similar business establishment that . . . experienced violent
crime on its premises,” the second incident does not satisfy the “similar
prior incident standard.”  (Ann M., supra, 6 Cal.4th
at p. 679 & fn 7.)

          Nor
does the evidence identified by appellant, viewed collectively, satisfy that
standard.  As explained in >Ann M., because “random, violent crime
is endemic in today’s society,” and few locales open to the public are free
from the probability

of violent crime, the “prior similar
incident” standard is necessary to regulate the imposition of duties on
proprietors to protect invitees and patrons from crime.  (Ann M.>, supra, 6 Cal.4th at pp. 678-679.)  Although the evidence may show that the
nightclub is subject to the possibility of violent crime, it is insufficient to
support the imposition of the security measures proposed by appellant.href="#_ftn11" name="_ftnref11" title="">^[11]  

          Appellant’s
reliance on Tan v. Arnel Management Co.
(2009) 170 Cal.App.4th 1087 and several other decisions is misplaced.  In Tan,
the plaintiff lived in an apartment complex whose overflow parking area was
surrounded by fences but lacked security gates. 
(Id. at pp. 1090-1091, 1099.)  When the plaintiff returned home, he was
forced to park in the overflow area because he could find no free space within
the complex’s secured perimeter, and was subjected to a carjacking during which
he was shot.  (Ibid.)  Although there had
been three prior attacks in the overflow area, including two assaults with a
deadly weapon or force likely to cause great bodily injury, the trial court
found that the owners of the complex had no duty to provide security gates for
the overflow area, reasoning that none of the prior incidents had involved a
gun.  (Id. at p. 1094.)  In
reversing, the appellate court concluded that the three prior incidents were
sufficiently similar to the carjacking to warrant the use of security gates,
which were not costly to install.  (>Id. at pp. 1098-1100.)  In contrast, as explained above, appellant
identified no prior incidents sufficiently similar to the shooting that
warranted the hiring of armed guards for Sunday events.  

          The
remaining decisions upon which appellant relies stand for the proposition that
even when a business is not obliged to hire security guards, its existing guards
must respond reasonably to an incident as it develops.  (Delgado,
supra, 36 Cal.4th at pp. 242-247 [guard was
obliged to separate antagonistic patrons to deter altercation]; >Taylor v. Centennial Bowl, Inc. (1966)
65 Cal.2d 114, 122-124 [guard was required to escort female patron to car to deter
potential assault by male patron who engaged in threatening conduct]; >Trujillo v. G.A. Enterprises, Inc.
(1995) 36 Cal.App.4th 1105, 1109 [guard was required to separate antagonistic
patrons to deter impending fight]; Marois
v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 202
[guards were required to ensure that patron obeyed their order to leave the
business’s premises].)  Here, the
nightclub’s guards discharged this duty: 
when the assailant attacked his original victim, Perez moved toward the
altercation to halt it, and called for assistance.  Due to the sudden onset of the incident, no
other reasonable responses were available to him.  In sum, respondents had no duty to ensure the
presence of armed patrols (or equivalent measures), as proposed by appellant.

 

2.     >No Causation

Appellant also
suggests that respondents were obliged to implement less burdensome measures to
deter the shooting that resulted in Camargo’s death.  She argues that more of the existing guards
should have been positioned in front of the nightclub, noting that as few as 4
or 5 guards may have been at the nightclub’s entrance, contrary to the
nightclub’s standard procedure, which required the positioning of up to 11 or
12 guards in front of the nightclub.    

          We
agree with the trial court that appellant has not shown that the absence of
more unarmed guards was a substantial factor in causing Camargo’s death.  As in Saelzler,
because the assailant’s identity and motivations are unknown, there is no
evidence that the presence of a greater number of unarmed guards in front of
the nightclub -- or even the presence of armed guards -- would have prevented
his attack.  Given the suddenness of the
assault, there is nothing to suggest that an additional number of guards could
have intervened in any way to prevent Camargo’s death.  It is thus speculation that the less
burdensome measures that appellant proposes would have been effective to
prevent Camargo’s death.  (Compare >Raven H. v. Gamette (2007) 157
Cal.App.4th 1017, 1026-1030 [jury could reasonably find that because assailant
entered plaintiff’s apartment through window, the absence of window-related security
measures provided to other tenants was a substantial factor in causing
plaintiff’s injuries].)  In sum, summary
judgment was properly granted.href="#_ftn12" name="_ftnref12" title="">^[12]  
 

          G.  Continuance

          Appellant contends she was improperly
denied a continuance.  At the hearing on
the summary judgment motions, she sought a continuance to conduct the
depositions of Reymundo Benitiz, a parking valet, and Eric Treggs, whom she
identifies on appeal as the assailant’s original victim.  She argues that the court erred in denying
her request.  We disagree.

          “The [summary judgment] statute
mandates a continuance of a summary judgment hearing upon a good faith name="sp_4041_254">showing by affidavit that
additional time is needed to obtain facts essential to justify opposition to
the motion.  [Citations.]  Continuance of a summary judgment hearing is
not mandatory, however, when no affidavit is submitted or when the submitted
affidavit fails to make the necessary showing . . . . name="sp_7047_814">name="citeas((Cite_as:_123_Cal.App.4th_246,_*2"> [Citations.]  Thus, in the absence of an affidavit that
requires a continuance . . . , we review the trial court’s
denial of appellant’s request for a continuance for abuse of discretion.”  (Cooksey
v. Alexakis (2004) 123 Cal.App.4th 246, 253-254.)href="#_ftn13" name="_ftnref13" title="">^[13]

          In seeking summary judgment, the Guys
and Dolls parties asserted that the assailant’s identity was unknown.  In February 2012, after the Guys and Dolls
parties filed their motion for summary judgment, appellant filed a motion for an
order to compel the deposition of Treggs, who had failed to appear at his
deposition.  Although the trial court
apparently issued the order, Treggs did not appear for a deposition.  In April 2012, appellant opposed the Guys and
Dolls parties’ request for a continuance. 


          Later, on May 4, 2012, CPS filed its
motion for summary judgment or adjudication, which also asserted that the
assailant’s identity was unknown.  In
arguing that appellant could not establish the element of causation, the motion
noted that the shooting was perpetrated “by an unknown assailant who was brazen
enough to pull a gun in front of a large crowd of witnesses,” and asserted, “It
is unknown what, if anything, would have prevented this thug from acting in
such a depraved manner.”  In opposition
to both summary judgment motions, appellant’s separate statements acknowledged
that the assailant’s unknown identity was an undisputed fact.     

          On July 18, 2012, at the hearing on
respondents’ motions, Robert Mandell, appellant’s counsel, asked for a
continuance after the trial court stated its intention to grant the motions.  The request was made orally, and was
unsupported by any declaration.  In
support of the request, Mandell argued that he needed time to obtain a bench
warrant for Treggs, and to conduct Benitiz’s deposition.  Mandell described the difficulties he had
encountered in securing Treggs’s deposition, and said that he was unaware that
the assailant’s identity was a potential “sticking point” until he saw the
trial court’s tentative ruling.  He did
not describe the testimony Treggs might provide.  Indeed, when defense counsel asserted that
neither he nor Mandell had any idea what Treggs might say regarding the
shooting or the identity of the assailant, Mandell did not disagree.  Mandell further maintained that although he
had not been able to locate Benitiz in order to conduct his deposition, he had a
statement from Benitiz that he saw the assailant and the man with the chain
arguing as they left the nightclub, shortly before the altercation in front of
the nightclub.  Mandell argued that if
the trial court regarded the assailant’s status as a nightclub patron as relevant
to the propriety of summary judgment, he required a continuance in order “to
spend the big bucks and find [Benitiz] . . . .”  The court denied the continuance.   

      We see no error in
this ruling.  Generally, a party seeking
a continuance must show that the facts to be obtained are essential to opposing
the motion, that there is reason to believe such facts may exist, and that additional
time is needed to obtain these facts.  (Wachs
v. Curry (1993) 13 Cal.App.4th 616, 623, disapproved on another point in >Marathon Entertainment, Inc. v. Blasi
(2008) 42 Cal.4th 974, 987-988.)  It is
“not sufficient under the statute merely to indicate further discovery or
investigation is contemplated.”  (>Roth v. Rhodes (1994) 25 Cal.App.4th
530, 548.)  Thus, declarations offered in
support of a continuance ordinarily should show:  â€œ(1)  ‘Facts establishing a likelihood that controverting evidence may
exist and why the
information sought is essential
to opposing the motion’; (2) ‘The specific
reasons why such evidence cannot be presented at the present time’; (3) ‘An
estimate of the time necessary
to obtain such evidence’; and (4) ‘The specific steps or procedures the
opposing party intends to utilize to obtain such evidence.’” name="sp_7047_290"> (Johnson
v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532, italics omitted,
quoting (Weil &
Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group) ¶
10:207.15, p. 10-83 (rev. #1, 2011).)

          Here, no declaration accompanied appellant’s
request, and her counsel otherwise failed to demonstrate an adequate basis for
a continuance.  Although CPS’s summary
judgment motion relied on the fact that the assailant’s identity and motivation
were unknown to show that causation could not be established, appellant’s
counsel offered no cogent explanation for failing to secure Treggs’s testimony while
the summary judgment motions were pending. 
Furthermore, appellant’s counsel presented no grounds for concluding
that Benitiz’s testimony could be obtained in a timely manner.  Under these circumstances, the court did not
abuse its discretion in denying the continuance.  (Rodriguez
v. Oto (2013) 212 Cal.App.4th 1020, 1037-1040 [trial court properly denied
continuance first requested at hearing on summary judgment motion and
unsupported by declarations]; Ambrose v.
Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353 [same]; >American Continental Ins. Co. v. C & Z
Timber Co. (1987) 195 Cal.App.3d 1271, 1280 [trial court properly denied
continuance requested in opposition memorandum to summary judgment, as no
declarations were submitted establishing basis for continuance].)        

      Appellant also
contends that the trial court was obliged to grant a continuance under Code of
Civil Procedure section 473, which Mandell identified as an alternative basis
for his oral request during the hearing on the summary judgment motions.href="#_ftn14" name="_ftnref14" title="">^[14]  However,
the provisions for mandatory relief under that statute are inapplicable to a
grant of summary judgment.  (Prieto v.
Loyola Marymount University (2005)
132 Cal.App.4th 290, 294-297; English
v. IKON Business Solutions, Inc. (2001)
94 Cal.App.4th 130, 148-149.) 
Furthermore, to the extent appellant relies on the provisions for
discretionary relief, she failed to establish a basis for relief.  Under subdivision (b) of Code of Civil
Procedure section 473, the moving party “must show, by affidavit or other
proof, a reasonable excuse” for the party’s untimely request to obtain and
present additional evidence.  (8 Witkin,
Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, §§ 144, 179,
pp. 736, 779.)  Because appellant made no
such showing in requesting a continuance, the statute does not afford her
relief.  In sum, the trial court did not
err in denying a continuance.   

 

DISPOSITION

          The judgment is affirmed.  Respondents are awarded their costs on
appeal.

          NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                   MANELLA,
J.

 

We
concur:

 

 

 

 

WILLHITE,
Acting P. J.

 

 

 

 

SUZUKAWA,
J.