Hernandez v. Fusion Food & Boba Cafe
Filed 9/23/13 Hernandez v. Fusion Food & Boba Cafe
CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
BRIAN HERNANDEZ,
Plaintiff and Appellant,
v.
FUSION FOOD & BOBA CAFE et
al.
Defendants and Respondents.
D060875
(Super. Ct. No. 37-2010-00090086-
CU-PO-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Joan M. Lewis, Judge.
Affirmed.
Manahan,
Flashman & Brandon, Amanda E. Manahan and Jeffrey S. Flashman for Plaintiff
and Appellant.
White,
Oliver, Amundson & Gallagher, Susan L. Oliver and Fernando Kish for
Defendants and Respondents Fushion Food & Boba Cafe and Cuong Lien.
Caroline L.
Dasovich & Associates, Caroline L. Dasovich and Shenne J. Hahn for
Defendants and Respondents Capitol Security Services, Inc.
This case
arises from an assault and battery
against plaintiff Brian Hernandez in the parking lot of the Mercury
Village Shopping Center
(Mercury Village)
where Hernandez and his girlfriend had gone for a gathering of car
enthusiasts. Defendant Fusion Food &
Boba Cafe (Fusion Food) leases premises within the shopping center.
The
incident occurred when Hernandez attempted to defuse a verbal confrontation
between his friend, Fernando, and a man named Christopher Jones. After initially walking away, Jones suddenly
turned and without warning attacked Hernandez, punching him in the face and
body, slamming him into the hood of a car, and then kicking him while he lay on
the ground.
Defendant
Capitol Security Services Inc's (CSSI's) on-site security employee tried to
stop the assault, then called 911. The
police arrived in three minutes, and paramedics then transported plaintiff to
the hospital. Hernandez sustained severe
injuries, including a broken left jaw and facial lacerations.
Hernandez
filed a complaint against, among others, Fusion Food and CSSI for
Fusion Food
and CSSI (collectively defendants) moved for summary judgment, asserting they
had no duty to protect Hernandez from an unforeseeable violent attack because
there had been no previous prior criminal acts at Mercury
Village. The court granted summary judgment.
On appeal,
Hernandez asserts the court erred in granting summary judgment because (1)
prior criminal acts are not the sole factor in determining whether a duty
existed for purposes of premises liability; (2) once the attack commenced,
Fusion and CSSI had a duty to intervene; (3) the provider of security services
can be separately liable for negligence outside of the premises liability
claim; (4) the fact criminal conduct was involved does not eliminate causation;
and (5) the court improperly excluded certain evidence. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
At about
9:00 p.m. on the evening of April 29, 2008, Hernandez, who at the time of the
incident was 19 years old, went to Mercury Village to attend a car rally and to
meet other friends with his girlfriend.
He saw a friend, Fernando, being confronted by Jones. Jones accused Fernando of stealing a car or
car parts. At the time, Fernando was 16
years old, approximately five feet seven inches tall, and weighed about 130
pounds. Jones was in his 20's,
approximately six feet four or five inches tall, and weighed 240 to 260
pounds. Hernandez attempted to calm
Jones and stop the confrontation.
After
initially walking away, Jones abruptly returned to the area where Hernandez was
talking with his friends and without warning attacked Hernandez from
behind. Jones struck Hernandez five
times in the head and stomach, picked up his body and slammed it against the
hood of a car, then stomped on his face and kicked him six times while he lay
unconscious on the ground. This attack
occurred in the presence of 15 or 16 witnesses.
In response
to the sudden attack on Hernandez, CSSI's security employee immediately ran
over to try to stop the fight, then called 911 to report the incident to police
and request paramedic assistance for Hernandez.
The police arrived within three minutes of the call.
The
property manager for Mercury Village hired CSSI to provide security
services. Fusion Food paid for some of
the costs of CSSI, but had no involvement in the selection and hiring of
CSSI. Fusion Food did not train or
control CSSI guards who performed services at the shopping center.
The lease
between Mercury Village and Fusion Food provides that Fusion Food does not own,
maintain or control any part of the shopping center's common areas, including
the parking lot and driveways. The
parking lot where the assault occurred is a common area over which Mercury
Village had exclusive control.
It is
undisputed that Fusion Food, the property manager of Mercury Village, CSSI, and
Hernandez himself were all unaware of any incidents of violence occurring at
the shopping center prior to Jones's assault on Hernandez. In fact, the owner of Mercury Village stated
in interrogatory responses that there
were no prior violent criminal acts on the premises. (RA 191,198).
B.
Hernandez
filed a complaint in April 2010 against Jones for assault and battery and
against Fusion Food, Anza Pacific Properties, Inc., Mercury Village Holdings,
and CSSI for general negligence and premises liability.
physical and mental injuries
as a result of the assault.
Except for
Jones, all defendants moved for summary judgment. The motions were based on the grounds that
they had no duty to protect Hernandez from an unforeseeable violent criminal
attack.
The court
granted summary judgment in favor of all defendants. In granting summary judgment in favor of
Fusion, the court noted that Hernandez alleged in his complaint that Fusion
"did not adequately and properly train security guards to protect
[Hernandez] from the criminal acts of third persons on the premises. It is undisputed, however, that no one from
[Fusion] had any involvement in the training of the security guards." The court further found that, "[b]ased
on the allegations of the complaint, the Court concludes that [Hernandez] is
seeking to impose a duty of preventing future harm that is great (e.g.,
additional security) and has failed to articulate how the harm could have been
prevented by simple means. The Court
additionally concludes that the assault on [Hernandez] was, if anything, a mere
possibility. Assessing both the burden
and foreseeability issues in this case, independently, the Court concludes that
[Fusion] did not owe [Hernandez] a duty to protect him from the unforeseeable
criminal conduct by Christopher Jones."
The court
sustained Fusion's evidentiary objections to certain documentary evidence submitted
by Hernandez based upon a lack of authentication. The court also sustained Fusion's objections
to the declaration of Hernandez's expert witness, Chris E. McGoey, that opined
the possibility of fights breaking out at car rallies should have been foreseeable
to Fusion as lacking in foundation and constituting an improper conclusion of
law.
As to
CSSI's motion for summary judgment, the court found that because there were no
prior similar attacks, the attack was not foreseeable. The court also rejected McGoey's declaration
that the attack was foreseeable as lacking foundation and an improper legal
conclusion.
This timely
appeal follows.
DISCUSSION
I. STANDARDS
GOVERNING SUMMARY JUDGMENT MOTIONS
The
summary judgment procedure is directed at revealing whether there is evidence
that requires the fact-weighing procedure of a trial. "'[T]he trial court in ruling on a
motion for summary judgment is merely to determine whether such issues of fact
exist, and not to decide the merits of the issues themselves.' [Citation.]
The trial judge determines whether triable issues of fact exist by
reviewing the affidavits and evidence before him or her and the reasonable
inferences which may be drawn from those facts." (Morgan
v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) However, a material issue of fact may not be
resolved based on inferences if contradicted by other inferences or
evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
"The
evidence of the moving party [is] strictly construed, and that of the opponent
liberally construed, and any doubts as to the propriety of granting the motion
[are to] be resolved in favor of the party opposing the motion." (Branco
v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.) The trial court does not weigh the evidence
and inferences, but instead merely determines whether a reasonable trier of
fact could find in favor of the party opposing the motion, and must deny the
motion when there is some evidence that, if believed, would support judgment in
favor of the nonmoving party. (
(2002) 104 Cal.App.4th 129, 139, disapproved on other grounds in
524.) Consequently, summary judgment
should be granted only when a moving party is entitled to judgment as a matter
of law. (Code Civ. Proc., § 437c, subd.
(c).)
Because
a motion for summary judgment raises only questions of law, we independently
review the parties' supporting and opposing papers and apply the same standard
as the trial court to determine whether there exists a triable issue of
material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575,
582; Southern Cal. Rapid Transit Dist. v.
Superior Court (1994) 30 Cal.App.4th 713, 723.) In practical effect, we assume the role of a
trial court and apply the same rules and standards governing a trial court's
determination of a motion for summary judgment.
(Lopez v. University Partners
(1997) 54 Cal.App.4th 1117, 1121-1122.)
We liberally construe the evidence in support of the party opposing
summary judgment (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142) and assess whether
the evidence would, if credited, permit the trier of fact to find in favor of
the party opposing summary judgment under the applicable legal standards. (Cf. Aguilar
v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
II. ANALYSIS
A.
In Wiener
v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at page 1150, the
California Supreme Court held that in the absence of a prior similar incident
the operator of a child care center did not owe a duty to protect against a
violent criminal assault by a man intentionally driving a car through a
four-foot-high chain link fence onto a playground and into a group of
children. In doing so, our high court
noted that "our cases analyze third party criminal acts differently from
ordinary negligence, and require us to apply a heightened sense of
foreseeability before we can hold a defendant liable for the criminal acts of
third parties." (Id. at pp.
1149-1150; see also Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100
Cal.App.4th 1190, 1212 ["Absent foreseeability of the particular criminal
conduct, there is no duty to protect plaintiff from that particular type of
harm."].)
As such,
foreseeability of third party criminal conduct "rarely, if ever, can be
proven in the absence of prior similar incidents of violent crime on the
landowner's premises. To hold otherwise
would be to impose an unfair burden upon landlords and, in effect, would force
landlords to become the insurers of public safety, contrary to well-established
policy in this state." (
6 Cal.4th 666, 679 (Ann M.), fn. omitted,
disapproved on another ground in Reid v.
Google, supra, 50 Cal.4th at p. 527, fn. 5.)
It is
undisputed that Fusion, CSSI, the property manager for the shopping center, and
indeed Hernandez himself were unaware of any prior similar acts of violence at
Mercury Village.
Hernandez
asserts that the lack of prior similar acts, alone, is insufficient to
determine whether an occupier of land owes a duty to protect against the
criminal acts of third parties. In
support of this contention, Hernandez cites Onciano
v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385 (
incidents "does not by itself negate the element of foreseeability as a
matter of law." (
subsequent Supreme Court decision in Ann M., supra, 6 Cal.4th 666. (See Eric J. v. Betty M. (1999) 76
Cal.App.4th 715, 721, fn. 5.) Onciano relied on Isaacs v.
Huntington Memorial Hospital (1985) 38 Cal.3d 112 for the proposition that
foreseeability can be established despite a lack of prior similar incidents on
the premises. However, the California
Supreme Court later revisited and revised this rule in Ann M., supra, 6
Cal.4th at pages 678-679, holding that foreseeability requires prior similar
incidents.
As Division
3 of the Fourth District Court of Appeal stated in Eric J. v. Betty M., supra, 76 Cal.App.4th at page 721, footnote
5: "The viability of the holding in
Onciano is questionable in light of the subsequent Supreme Court
decision in Ann M.[, supra,]
Huntington Memorial Hospital, supra, 38 Cal.3d 112 to reject the idea that
a lack of prior criminal activity was not dispositive in the landowner's favor,
a fact which Justice Fred Woods would find troubling in a separate concurring
opinion, where he lamented Isaacs's 'broad brush dicta.' (See Onciano[], supra, 219 Cal.App.3d at pp. 396-397 (conc. and dis.
opn. of Woods (Fred) J.).) Liability in
the face of the absence of notice of prior criminal activity, however, was
dispositive in favor of the landowner in Ann M., a rationale which
Justice Mosk, in his dissent in Ann M., criticized as being inconsistent
with Isaacs. (See Ann M.,
supra, 6 Cal.4th at pp. 680-683 (dis. opn. of Mosk, J.).) "
The
existence and scope of a business owner's duty to protect against a threat of
future criminal activity, imminent or otherwise, depends on the foreseeability
of the sort of criminal conduct that actually occurred. (Sharon P. v. Arman, Ltd. (1999) 21
Cal.4th 1181, 1195 ["defendants' duty of care did not include the hiring
of security guards for the garage because the bank robberies were not
sufficiently similar to the sexual assault crime to establish a high degree of
foreseeability"], disapproved on another ground in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn.
19; Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 510-511
[existence of prior crimes on business premises in high crime area, including
two robberies, did not make massacre by armed criminal reasonably foreseeable];
Gregorian v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 950 ["While the proprietor of an
all-night convenience store may . . . reasonably anticipate
that his place of business will be the target of armed robbers, the same cannot
be said for a crime resulting from gang violence."].)
"[I]n the case of criminal
conduct by a third party, an extraordinarily high degree of foreseeability is
required to impose a duty on the landowner, in part because 'it is difficult if
not impossible in today's society to predict when a criminal might
strike.'" (Garcia v. Paramount
Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1457, italics omitted,
quoting Wiener v. Southeast Childcare Centers, Inc., supra, 32 Cal.4th
at p. 1150.) "In each case,
however, the existence and scope of a property owner's duty to protect against
third party crime is a question of law for the court to resolve." (Castaneda v. Olsher (2007) 41 Cal.4th
1205, 1213.)
As we have discussed, ante,
Fusion had no notice of any prior similar acts of violence at Mercury
Village. The property manager and owner
of Mercury Village similarly are not aware of any prior acts of violence. Indeed, the owner has stated that there were
no prior acts of violence at that shopping center. CSSI is also unaware of any prior incidents
of violence. Hernandez himself concedes
he is unaware of any prior acts of violence.
Thus, the court properly granted summary judgment because the criminal
assault by the third party was not foreseeable.
B. Proposed Measures To Prevent The Harm
Hernandez also asserts that the court erred
in granting summary judgment in favor of Fusion because its ruling was based
solely upon a finding that there were no prior similar acts of violence. This contention is unavailing. The court also
considered measures proposed by Hernandez to prevent the harm, as well as the
burden on Fusion of adopting such measures.
The only measure Hernandez suggested
was that defendants did not adequately train security guards to protect against
criminal acts of third parties. However,
it is undisputed that Fusion had no involvement in the training of security
guards. Accordingly, the court correctly
determined that Hernandez failed to identify how the harm could have been
prevented by additional measures.
C. Rowland Factors
Hernandez also asserts that
determining the existence and scope of the duty owed in this case requires
application to the factors announced in Rowland v. Christian (1968) 69
Cal.2d 108, 113 (Rowland). This
contention is unavailing.
The factors announced in Rowland are
used to determine the scope and existence of duty in ordinary premises
liability cases. Here, we have a case
involving an injury caused by the criminal act of a third party. The lack of forseeability alone in this
case is dispositive.
D. Duty To Intervene
Hernandez asserts that Fusion and
CSSI had a duty to intervene once the altercation between he and Jones
commenced. We reject this contention.
Initially, this argument has been
waived as Hernandez did not raise it below.
We do not consider theories that were not advanced by an appellant
before the trial court. (DiCola v.
White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666,
676.)
Moreover, CSSI presented
uncontroverted evidence that its security guard did attempt to intervene
and then called 911. Moreover, as to
Fusion, there is no evidence that the altercation took place in the presence of
any of its employees.
E. Evidentiary Objections
Hernandez asserts that the court
erred in sustaining objections to its evidence made by Fusion and CSSI. This contention is unavailing.
The court expressly stated in its ruling
granting summary judgment in favor of Fusion that "[e]ven if the Court
were to overrule the Defendant's evidentiary objections and consider all
evidence submitted, this Court is of the opinion that there simply were no
similar prior incidents or other circumstances that would support imposing a
duty on Defendant to protect against the harm suffered by Plaintiff." (Italics omitted.) Thus, as to Fusion, even if the court erred
in sustaining its evidentiary objections, it would not change the result of
Fusion's motion for summary judgment.
Hernandez first asserts the court
erred in not considering a "supplemental" declaration that was filed
to authenticate documents he filed in opposition to the summary judgment
motion. However, the supplemental declaration
included in the appellant's appendix does not have a stamp indicating it was
ever filed with the court. Therefore,
the court did not err in failing to consider that declaration as the record
does not reflect that it was ever presented to the court.
Hernandez also asserts the court
erred in sustaining the defendants' objections to the declaration of his
security expert. This contention is
unavailing.
"There are limits to expert
testimony, not the least of which is the prohibition against admission of an
expert's opinion on a question of law."
(Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155,
1178.) Moreover, "'[t]he manner in
which the law should apply to particular facts is a legal question and is not
subject to expert opinion.'" (Id.
at p. 1179.) Further, "an
expert opinion based on speculation or conjecture is inadmissible." (Lockheed Litigation Cases (2004) 115
Cal.App.4th 558, 564; Mitchell v. United Nat'l Ins. Co. (2005) 127
Cal.App.4th 457, 478; Evid. Code, § 801, subd. (b).)
Here, the court properly sustained
the defendants' objections to McGoey's declaration. For example, in his declaration McGoey
concluded that Hernandez was injured "as a direct result of a [CSSI] guard
allowing a large crowd of young men to loiter while attending a car rally in
the parking lot." There is no
evidence in the record that a "large crowd of young men" was present
at the time of the attack, and the term "loitering" is itself a legal
conclusion. McGoey further opines that
"based on the broad range of [CSSI's] responsibilities and
powers . . . it is my opinion that [CSSI] maintained and
exercised control over the premises while they worked at Mercury Village during
the car rallies." This opinion is
also an improper legal conclusion.
McGoey further opined that "[b]ased on the information that was
known to [CSSI] before the incident . . . , it was
foreseeable that a fight or another type of violent incident could occur in the
parking lot during one of the rallies."
This opinion is also an improper legal conclusion. It is also speculative because, as we have
discussed, ante, there were no prior similar incidents.
DISPOSITION
The judgment is
affirmed. Respondents shall recover
their costs on appeal.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1]
Jones, Anza Pacific Properties,
Inc. and Mercury Village Holdings are not parties to this appeal.
