David C. v. City of Long Beach

Filed 8/30/06 David C. v. City of Long Beach CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick T. Madden, Judge. Affirmed.

Gabriel & Associates and Stevan Colin for Plaintiff and Appellant.

Robert E. Shannon, City Attorney, and Monte H. Machit, Deputy City Attorney, for Defendant and Respondent.

INTRODUCTION

Plaintiff David C., a minor, who was the victim of a sexual assault by an adult while he was present in a facility owned by the City of Long Beach ("the City"), appeals from a judgment entered after the grant of summary judgment in favor of the City. We conclude that David C. has not produced evidence showing that the City created or maintained its property in a dangerous condition, and therefore the City cannot be held liable under the "dangerous condition" statute, Government Code section 835. David C. has not shown that the City owed him a duty arising from its "special relationship" with him. Although David C. argues that a city employee negligently failed to provide supervision, David C. actually seeks to impose a duty to provide protection from foreseeable third party crime. Whether this duty exists involves a determination whether prior similar incidents of violent crime had occurred on the premises, and because no prior similar incidents of an adult's sexual assault on a minor had occurred in the City-owned facility or in the park in which it was located, the City employee had no duty to protect and to provide security. We affirm the judgment.

STANDARD OF REVIEW

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)

FACTUAL AND PROCEDURAL HISTORY

David C.'s Complaint: In the operative complaint, plaintiff David C., a minor, by and through his guardian ad litem Ramona Esparza, alleged causes of action for negligence, negligent infliction of emotional distress, and negligent supervision, training, and retention against defendants the City of Long Beach, the City of Long Beach Department of Parks, Dixie Swift individually and as Director, and the Long Beach Police Department.[1] The complaint alleged that on September 2, 2002, while volunteering his services as the Homeland Culture Arts Center ("the Center") in MacArthur Park in Long Beach, David C. was sexually assaulted by an adult male intruder who came into the center through an unlocked or broken door.

The complaint alleged that after David C. filed a notice of claim for damages with the City and its Police and Parks and Recreation Departments, David C.'s claims were deemed rejected by operation of law on April 14, 2003.

The negligence cause of action alleged that defendants breached their duty of care owed to David C. by failing to provide proper and reasonable methods for safekeeping, security, and maintenance of the Center, which allowed a dangerous and hazardous condition to endanger David C.'s safety. The negligent infliction of emotional distress cause of action alleged that as a proximate result of defendants' acts, David C. experienced serious and severe emotional distress. The cause of action for negligent supervision, training, and retention alleged that in view of the work entrusted to Swift, or as a result of Swift's recklessness, defendants City, Long Beach Department of Parks, and Long Beach Police Department knew or should have known that Swift was incompetent and/or unfit to perform the duties required of Swift.

Defendants' Summary Judgment Motion: On October 23, 2004, The City of Long Beach ("the City") and Swift filed a motion for summary judgment. Defendants' motion argued that the City and Swift did not owe David C. a duty to protect him from a third party assailant's unforeseeable criminal attack, that the unlocked door was not a cause of the criminal attack, and that the negligent hiring and retention cause of action failed because David C. could not maintain a common law negligence claim against the City and there was no statutory basis for negligent retention. Plaintiff filed opposition on December 30, 2004.

Undisputed Facts: The following facts were undisputed.[2] On September 2, 2002, 15-year-old David C. had lived across the street from MacArthur Park in Long Beach for six to seven years. MacArthur Park is the site of "the Center," which the City owns and operates. Beginning in the summer of 2002, David C. joined a teen volunteer program and worked at the park Monday through Friday all summer, helping with a free lunch program or cleaning the park and the Center.

On September 2, 2002, David C. arrived at the Center between 10:30 and 11:00 a.m., intending to earn additional teen hours. Although David C. knew it was Labor Day, he thought the Center would be open. David C. went to the administrative trailer to sign in, but the trailer was closed and no staff member was present. David C. saw no other teen volunteers or any of the 100 to 150 children who normally participated in the free lunch program.

David C. noticed two homeless persons sitting near the social hall. He recognized a White female who had panhandled in the neighborhood, but did not recognize the other homeless person, a Black male. Doors to the social hall have self-closing hinges and are normally locked when shut. David C. saw a door to the social hall open approximately five inches, and entered through that open door. David C. did not know why or how the door came to be opened. No one was present in the social hall or in the building. Because it was a holiday, no employee was working or scheduled to work.

Inside, David C. checked for signs that someone had broken in, but found nothing amiss. He began to dry mop while waiting for other volunteers or staff to arrive. After about a half hour, David C. left the Center and went home to have lunch with his siblings. He then walked to a convenience store, bought sunflower seeds, and returned to the social hall, which he re-entered through the unlocked door.

Based on his experience at the Center, David C. knew that the doors to the social hall did not always close with enough force to engage the lock. To engage the lock, the doors had to be pulled shut from the inside or pushed shut from the outside.

After re-entering the social hall, David C. decided to share his sunflower seeds with the transient woman outside. He offered sunflower seeds to her, but the man, Miles, snatched the sunflower seeds for himself. David C. left Miles and the woman, and entered the social hall a third time. He closed the door but did not pull it to engage the lock, since he wanted to leave the door open. Shortly thereafter, Miles entered the Center and forced David C. to perform fellatio on him. Miles told David C. he had been watching him and knew his first name and where he lived.

If locked, the door David C. walked through could be forced open, but this process would make a great deal of noise. David C. stated that just before Miles confronted him he heard a noise, but it was not the noise of a door being forced open.

The City had an alarm system installed at the facility at the time of the incident, but the alarm system was never activated before September 2, 2002. Other than the sexual assault on David C., no other employee, adult, or child had been sexually assaulted at or near the Center between 1997 up to the time of the incident. Police records identify only two physical altercations at the Center. In the first, on September 24, 1999, an acquaintance stopped a teenager walking from the park office to the bathroom. The victim knew the suspect to be a gang member from Los Angeles. The suspect claimed the victim "snitched him off to his brother about having marijuana." The victim hit the suspect with her fist, and the suspect hit the victim twice before fleeing on a bicycle. In the second incident on June 26, 2000, a staff member allowed five "East Side Longos" gang members to use the Center's rest room. When they began to vandalize the rest room, the staff member asked them to leave. The gang members started a fight and hit the staff member before they left.

No homeless person had ever physically assaulted or threatened any staff or visitor. Dixie Swift is an employee of the City, and did not own the premises, control maintenance at the Center, or hire staff at the Center. The City personnel department hired all staff at the Center. During the five years Swift was assigned to the Center, she had seen 11 fights at MacArthur Park, all of which occurred between young men using basketball courts or other parts of the park north of the Center. None of these fights involved persons using the Center. Swift never saw any fights at the Center.

David C. and his mother felt safe in the park. David C. and his siblings were permitted to play in the park during the day without adult supervision.

The Grant of Summary Judgment, and David C.'s Appeal: After granting summary judgment, the trial court ordered that judgment be entered in favor of the City on March 8, 2005. David C. filed a timely notice of appeal.

ISSUES

David C. claims on appeal that:

1. The trial court erroneously granted summary judgment because the City owed a duty to David C. based on a special relationship existing between him and the City and because of the foreseeability of David C.'s injury;

2. The City is liable to David C. because Swift negligently failed to supervise him and refused to use an installed security system at the Center when she knew David C. was likely to be volunteering; and

3. The City owed David C. a duty of care to guard or protect him against assaults or other violence while he was on the premises.

DISCUSSION

1. David C. Has Not Shown That the City Created or Maintained Its

Property in a Dangerous Condition

A. Plaintiff Is Limited to Recovery for Injury Caused by the City's

Creation or Maintenance of a Dangerous Condition of Its Property (Gov. Code, § 835)

David C. claims that the trial court erroneously found that the City owed him no duty of care, which duty was created by the foreseeability of David C.'s injury and by the special relationship that existed between David C. and the City.

All governmental tort liability must be based on statute. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) A public entity, such as the City, is not liable for an injury arising out an act or omission of a public entity, a public employee, or any other person, unless a statute provides for such liability. (Gov. Code, § 815, subd. (a).)

David C. relies on Government Code section 835, which states: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:

"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

"(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."

Government Code section 835 is the "sole statutory basis for a claim imposing liability on a public entity based on the condition of public property." (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.)

B. David C. Did Not Produce Evidence Satisfying the Statutory

Requirements of a "Dangerous Condition" of the City's Property

David C. must satisfy the first statutory requirement by showing "that the property was in a dangerous condition at the time of the injury." Government Code section 830, subdivision (a), defines "dangerous condition" as "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used."

While ordinarily a question of fact, the existence of a dangerous condition can be decided as a question of law if reasonable minds can come to only one conclusion. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.)

"[A] dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself." (Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th at p. 148.) There is no evidence that the door to the Center was unlocked because the door or the lock was damaged, deteriorated or defective. An unlocked door is not, in and of itself, inherently dangerous. (Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 497.) Nor does a third party's criminal act combine with the unlocked door to create a dangerous condition. "Liability for injury caused by a dangerous condition of property has been imposed when an unreasonable risk of harm is created by a combination of defect in the property and acts of third parties. . . . However, courts have consistently refused to characterize harmful third party conduct as a dangerous condition-absent some concurrent contributing defect in the property itself." (Hayes v. State of California (1974) 11 Cal.3d 469, 472, italics omitted.)

It is true that "a public entity may be liable if it 'maintained the property in such a way so as to increase the risk of criminal activity' or in such a way as to 'create[] a reasonably foreseeable risk of . . . criminal conduct.' [Citation.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1134-1135.) Where the condition of public property facilitated criminal activity and the risk of crime was reasonably foreseeable because the public entity that owned the property was aware of prior criminal assaults, the public property may be found to be a dangerous condition. (See Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 813.) "[H]owever, . . liability is imposed only when there is some defect in the property itself and a causal connection is established between the defect and the injury. In many cases, courts have rejected the claim that an injury caused by the criminal activity of a third person was attributable to a dangerous condition of the property within the meaning of Government Code section 835, because the claims lacked an adequate showing that the property itself was in a defective condition." (Zelig v. County of Los Angeles, supra, at p. 1135, italics omitted.)

We have found that the unlocked door to the Center was not a dangerous condition, but even if it was it did not create "a reasonably foreseeable risk of the kind of injury which was incurred[.]" (Gov. Code, § 835.) There was no evidence that prior sexual assaults by an adult on a minor had happened in the Center, or in MacArthur Park. The evidence was that two incidents of criminal violence had occurred in the park where the Center was located.[3] Neither incident had occurred in the Center or had involved someone using the Center. Neither incident involved a sexual assault by an adult on a minor. Moreover, David C.'s separate statement in opposition to the summary judgment motion produced no evidence satisfying Government Code section 835, subdivision (a) (a public employee's negligent or wrongful act or omission, within the scope of his employment, that created the dangerous condition) or subdivision (b) (the City's actual or constructive notice of the dangerous condition a sufficient time before the injury to have taken measures to protect against the dangerous condition).

We therefore conclude that plaintiff did not produce evidence satisfying the requirements of public entity liability under Government Code section 835. Therefore the trial court properly granted summary judgment in favor of the City.

C. The City Did Not Have a "Special Relationship" With David C.

David C. also argues that a possessor of land has a special relationship with members of the public who enter in response to the landowner's invitation which gives rise to an affirmative duty to protect another from third parties' conduct.

David C.'s complaint did not allege that the City of Long Beach owed a duty to David C. based on a special relationship with him. In ruling on a summary judgment motion, the issues which are material are limited to the allegations of the complaint. (Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223.) A defendant moving for summary judgment is only required to negate plaintiff's theories of liability as alleged in the complaint. (Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 829.) Summary judgment cannot be granted on a ground not raised by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)

David C.'s opposition to the summary judgment motion did not raise this argument. Possible theories not fully developed or factually presented to the trial court cannot create a triable issue on appeal. (Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588.)

On appeal, David C. makes no attempt to show that the evidence proves that the City had a special relationship to him. Neither case David C. cites for the "special relationship" giving rise to a duty to protect another from third parties' conduct concerned a public entity. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224; Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114.) David C.'s failure to provide argument and discussion with citations to legal authority and evidence forfeits this issue on appeal. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)

2. David C. Has Not Shown Error in the Grant of Summary Judgment as to

the Cause of Action for Negligent Supervision, Training, and Retention

David C. claims that the City is liable to him because Swift negligently failed to supervise him and negligently refused to use an installed security system at the Center when she knew he was likely to be volunteering his time for the City.

David C. argues that the City has liability for its employee's actions committed in the course and scope of their employment, based on Government Code section 815.2, which states: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

"(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

The cause of action for negligent supervision, training, and retention in the operative complaint did not allege the liability of Swift or of the City based on Government Code section 815.2. The complaint alleged that the City employed Swift in its Department of Parks and Recreation, and had the legal duty to oversee and supervise the hiring, training, retention, conduct, employment and discipline of each employee of the Department of Parks and Recreation. The cause of action for negligent supervision, training, and retention further alleged that in view of the work entrusted to Swift and as a result of Swift's recklessness, the City knew or should have known that Swift was incompetent and unfit to perform the duties required of her. The complaint alleged David C. was injured as a direct and proximate result of Swift's incompetence and unfitness.

David C.'s opposition to the summary judgment motion did argue that the City was liable for Swift's conduct based on Government Code section 815.2. David C.'s separate statement in opposition to the summary judgment motion, however, makes no citation to evidence supporting this claim. Absent a separate statement with references to supporting evidence, it is impossible for a party opposing a summary judgment motion to demonstrate the existence of disputed facts. (California School of Culinary Arts v. Lujan, supra, 112 Cal.App.4th at p. 22.)

On appeal, David C. provides no further discussion or evidence concerning Swift's refusal to use an installed security system, and we treat that issue as forfeited. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)

Regarding the claim that Swift negligently failed to provide supervision, David C. identifies no statute imposing a legal duty on Swift to supervise him. "Where a legal duty is not created by statute, the question of whether a legal duty exists is analyzed under general principles of tort law."(Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1093.)

Here the purported duty of supervision, which David C. seeks to impose on Swift, is not one which would have prevented David C. from causing harm to himself or to some third party. (See Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 933; Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4h 1352, 1369.) The duty of supervision that David C. seeks to impose is really a duty to provide security and to protect him from third party criminal conduct; the theory is that if Swift had been present and supervised David C., that would have prevented the assault upon him. (Id. at p. 1372.) The duty to provide protection from foreseeable third party crime involves a determination whether prior similar incidents of violent crime had occurred on the premises. Absent such prior similar incidents of violent crime on the premises, the duty to provide protection does not arise. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679.) As we have found, ante, no prior similar incidents in which an adult had sexually assaulted a minor, had occurred at the Center or at MacArthur Park. Therefore Swift had no duty to protect and to provide security. We find no error in the grant of summary judgment as to this cause of action.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to the City of Long Beach.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] The complaint named defendants Beverly O'Neill individually and as Mayor of the City of Long Beach, and Anthony Brett individually and as Chief of Police, but on March 3, 2004, plaintiff voluntarily dismissed the complaint without prejudice as to these defendants.

[2] Code of Civil Procedure section 437c, subdivision (b)(3), requires an opposition separate statement to follow each material fact disputed by the opposing party by a reference to supporting evidence. When denying defendants' facts, David C.'s separate statement makes no citation to supporting evidence. "Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the [opposing party] to demonstrate the existence of disputed facts." (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) California Rules of Court, rule 342(f) states, in relevant part: "An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted." This court disregards all such unsupported denials of defendants' evidence.

[3] David C.'s opening brief refers to deposition testimony by defendant Swift concerning prior break-ins at the Center and Swift's work orders for lock repairs at the Center, and to testimony by Angela Avery, a former General Superintendent of the Department of Recreation, concerning prior break-ins and dangerous people in the park. David C.'s separate statement in opposition to the summary judgment did not contain citations to this evidence. The court need not consider facts stated elsewhere. (Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916, fn. 3.)