Arias Latino Market
Filed
10/15/12 Garcia v. Arias Latino Market
CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
MARIA GARCIA et al.,
Plaintiffs and Appellants,
v.
ARIAS LATINO MARKET, INC., et al.,
Defendants and
Respondents.
F062504
(Super.
Ct. No. CV263228)
APPEAL from
a judgment of the Superior Court of
Rodriguez
& Associates, Daniel Rodriguez and Joel T. Andressen; Esner, Chang &
Boyer, Stuart B. Esner and Holly N. Boyer for Plaintiffs and Appellants.
Daley &
Heft, Lee H. Roistacher and Robert H. Quayle IV for Defendant and Respondent
Arias Latino Market, Inc.
Manning
& Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod and Darin L. Wessel for
Defendant and Respondent National Farm Workers Service Center, Inc.
Murphy,
Pearson, Bradley & Feeney, Mark S. Perelman and Matthew A. Cebrian for
Defendant and Respondent Independence Private Patrol, Inc.
-ooOoo-
This is an appeal from
Maria Garcia and her children (collectively, plaintiffs), survivors of Luis
Garcia, Sr. (Garcia). Plaintiffs contend
the trial court erred when it concluded there was no triable issue of fact by
which plaintiffs could establish defendants’ acts or omissions were a
substantial cause of Garcia’s death. We
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
For
approximately a dozen years prior to 2007, defendant Arias Latino Market, Inc.
(Arias), had permitted outdoor festivals in the plaza area of its Mercado
Latino in Bakersfield. On May 6, 2007,
defendant National Farm Workers Service Center, Inc. (NFWSC), which operated
Radio Campesina, hosted a festival at Mercado Latino, with the permission of
Arias. NFWSC hired defendant
Independence Private Patrol, Inc. (Independence) to provide 16 security guards
for the event.
Garcia and
his extended family went to the festival in the evening. The festival was confined to a fenced-in
area, which the Garcia family entered through one of two open gates. There were no security guards at the gate
when the Garcias entered. The festival
was very crowded and the music was loud.
Soon after the family arrived at the festival, Garcia’s brother, Carlos
asked a woman to dance. She declined and
people in her group began to mock Carlos and shout obscenities at him. Carlos’ brother Antonio attempted to
intervene. One of the men in the group
threw a drink in Antonio’s girlfriend’s face.
A fistfight broke out. Garcia
intervened and fought with “about four men.â€
Security guards attempted to break up the dispute. One of Garcia’s brothers punched one of the
guards. Six or seven shots were fired
and Garcia was hit. He died as a result
of his injuries. The killer was not
identified or apprehended. The gun was
never recovered. The manner in which the
killer and the gun entered the festival was unknown. The chain link fence surrounding the festival
area was temporary perimeter fencing that contained gaps large enough to allow
an object to be passed through it. Part
of the festival area was enclosed by a stone wall that was short enough to
allow a person to jump, or an object to be passed, over it.
Plaintiffs
sued Arias, Independence, and NFWSC for premises liability and negligence.
discovery, defendants moved for summary judgment or summary adjudication. (Independence moved only for summary
judgment.) The motions contended there
was no triable issue of material fact concerning either defendants’ duty to
protect Garcia from criminal acts of third parties or causation. (Independence asserted only the causation
issue.) The trial court denied the
motions on the grounds of duty and granted the motion on the grounds of
causation.
DISCUSSION
The trial
court granted summary judgment on the basis that plaintiffs “cannot meet their
burden of showing that any breach by any of the Defendants was a cause of the
resulting shooting.†The court cited and
relied upon Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763 (Saelzler).
On appeal, plaintiffs contend
plaintiffs have established triable issues concerning causation, and that, in
any event, defendants never met their initial burden on a motion for summary
judgment, so the burden to show evidence of causation never shifted to
plaintiffs. We conclude the motion was
sufficient and Saelzler requires the
result reached by the trial court.
name="_ftnref3" title="">[3]
Plaintiffs
incorrectly assert that Saelzler, supra, 25
Cal.4th 763, was decided under the standard of review for summary judgment
prevailing prior to the Supreme Court’s elucidation of the present standard of
review in Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 854-855.
Thus, in both Aguilar and
court recognized the burden on a defendant moving for summary judgment to show
that the plaintiff does not possess and cannot reasonably obtain evidence
needed to establish a cause of action, but in Aguilar, supra, at page 855, the court required that the defendant
make this showing by means of evidence, not by mere assertion. According to plaintiffs, Saelzler permitted a defendant to meet this initial burden merely
by pointing out the absence of evidence to support the plaintiff’s case. (See Saelzler,
supra, 25 Cal.4th at pp. 780-781.)
In the passage cited by plaintiffs, the Saelzler court does, in fact, quote language from
43 Cal.App.4th 472, 482, that uses the “point to†formulation, but the
quotation is used to illustrate cases applying the defendant’s burden of proof
under the summary judgment statute, Code of Civil Procedure section 437c, not
to address the method by which the
defendant satisfies this burden. (See
780-781.) Earlier in the
address the issue of the method of meeting the defendant’s burden of
proof: “Therefore, we must determine
whether defendants in the present case have shown, through the evidence adduced in this case, including security
records and deposition testimony, that plaintiff Saelzler has not established,
and cannot reasonably expect to establish, a prima facie case of causation
….†(Id.
at p. 768, italics added.) This
statement of the issue reflects exactly the same requirements further
considered in more detail in Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at pages 854-855, which was filed
two weeks after the court’s opinion in Saelzler. Accordingly, we conclude Saelzler cannot be distinguished from the present case on the basis
Saelzler applied a different standard
of review than the standard presently applicable.
We now turn
to the question whether “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law†(Code Civ. Proc., § 437c, subd. (c)), which
we review de novo. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p.
860.) In this premises liability case,
defendants met their initial burden of proof under Code of Civil Procedure
section 437c, subdivision (c), by establishing (through uncontradicted
evidence) that there is no evidence how the gun came to be in the possession of
someone inside the fence at the festival.
Thus, as in Saelzler, supra, 25
Cal.4th at page 776, the burden shifts to plaintiffs to establish
causation. In the absence of evidence of
how the gun and its shooter came to be at the location, plaintiffs are unable
to establish that any breach of duty by any of the defendants was a substantial
cause of Garcia’s death. (
or omission might appear, the plaintiff must nonetheless show the act or
omission caused, or substantially contributed to, [the plaintiff’s] injury. Otherwise, defendants might be held liable
for conduct which actually caused no harm, contrary to the recognized policy
against making landowners the insurer of the absolute safety of anyone entering
their premises.†(Id. at p. 780, italics omitted; see generally Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586,
1596 [summarizing causation principles].)
Plaintiffs
rely primarily on two cases in an attempt to distinguish Saelzler, supra, 25 Cal.4th 763.
Both cases share a significant feature that makes them inapposite
here: reasonable inferences from the
evidence linked the third party’s opportunity to commit the criminal act to the
lapse in security, thereby providing a basis upon which a jury could conclude
that the defendant’s negligence was a substantial cause of the plaintiff’s
injury. In Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th
284, 291, the security measure, an armed guard, was absent from his post; a
post that was located where the plaintiff was standing when he was
assaulted. In Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1524, the assailant
was a transient who had been seen around the complex being aggressive and
frightening the tenants.
facts from those in Saelzler on the
basis that it was clear the third party criminal was not a tenant of the
complex or otherwise authorized to enter or be on the premises, and that it was
“more likely than not … [the] attacker used the same method of entry on the day
of the [attack] that he and others had been using over an extended period of
time …, entry through the malfunctioning doors ….†(Ambriz, supra,
at p. 1538.)
In
the present case, there was no evidence whatsoever that the killer would have
been prevented by increased security from being inside the fenced area of the
festival in possession of a gun. Not
only was there evidence that there was an alternative way to enter the fenced
area without going through the main gates, but there was evidence that a gun
could be passed through or over the perimeter fencing from the outside. On appeal, plaintiffs reject these
alternatives as “far-fetched,†but in their opposition to the motion for
summary judgment, plaintiffs expressly contended the gun could have entered the
premises through these alternative methods.
Plaintiffs’ expert witness, in fact, cited the gaps in the fence as a
breach of defendants’ duty to provide security at the festival, a claim
plaintiffs do not renew on appeal. As
stated in Saelzler, supra, 25 Cal.4th
at page 779, “in a given case, direct or
assailant took advantage of the defendant’s lapse (such as a failure to keep a
security gate in repair) in the course of committing his attack, and that the
omission was a substantial factor in causing the injury. Eyewitnesses, security cameras, even
fingerprints or recent signs of break-in or unauthorized entry, may show what
likely transpired at the scene. In the
present case no such evidence was presented ….â€
In the case before us, not only is there no evidence the gun was taken
into the festival area through an unmanned gate, but the evidence showed there
were alternative means of access that could have been used by persons determined
to bring a gun onto the premises even if security was in full force at the
gates. (See Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752-753 [child drowned
in swimming pool with defective gate; evidence showed other means of entry into
pool area even if gate had proper latch].)
triable issue of fact concerning causation; the trial court properly granted
summary judgment for defendants.
DISPOSITION
The
judgment is affirmed. Defendants are
awarded costs on appeal.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
CORNELL, Acting P.J.
_____________________
KANE, J.
name="_ftn1" title="">[1] We
use the first names of Garcia’s brothers for ease of reference; no disrespect
is intended.
name="_ftn2" title="">[2] Only
Arias and Independence are named in the original complaint. NFWSC apparently was added as a Doe defendant
in pleadings not contained in the record on appeal.
