Ortiz v. Siddiqui
Filed 6/24/13 Ortiz v. Siddiqui CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
ELVIRA ORTIZ et al.,
Plaintiffs and Appellants,
v.
ISRAR SIDDIQUI et al.,
Defendants and Respondents.
B239684
(Los Angeles
County Super.
Ct.
No. NC043501)
APPEAL from
a judgment of the Superior Court
of
County, Roy L. Paul, Judge.
Affirmed.
Law Office
of Rosalinda V. Amash, Rosalinda V. Amash; Law Office of Matthew P. Fletcher
and Matthew P. Fletcher for Plaintiffs and Appellants.
Lewis
Brisbois Bisgaard & Smith, Roy G. Weatherup, David B. Shapiro, Caroline E.
Chan, and Lynda Kim for Defendants and Respondent.
_____________________________
Plaintiffs and appellants Elvira Ortiz, Jorge Aguirre,
and Jaime Aguirre appeal from the trial court’s order granting defendants and
respondents Israr Siddiqui’s and Sadeeda Akhtar Siddiqui’s motion for
negligence, wrongful death, gross negligence, emotional distress, and premises
liability. Plaintiffs contend defendants
owed Jorge and Francisco Aguirre (now deceased) a duty, as patrons, to protect
them from injury by third parties. They
further contend there is a triable issue of fact with respect to whether
defendants’ inaction caused the injuries suffered. Finally, plaintiffs assert the judgment must
be reversed because the trial court abused its discretion in overruling their
evidentiary objections.
We affirm the judgment.
FACTS
Events
Precipitating the Lawsuit
At around 1:00 a.m. on January 19, 2008, Samuel Pinto and Carlton Benson drove to a 7-Eleven
located at 1519 N. Gaffey in San Pedro in a white van. Pinto was the driver of the van and parked
directly in front of the store in a 10-minute parking zone. Pinto and Benson purchased beer, cigarettes,
and soda. After departing the store,
they remained parked in the van for a few minutes. Pinto and Benson may have been drinking
alcohol and/or smoking marijuana in the van.
While Pinto and Benson were parked in the lot, a group of approximately
10-15 people, including Francisco and plaintiffs Jamie and Jorge, arrived at
the 7-Eleven in a limousine bus. The bus
was parked on Capital Drive, north of the 7-Eleven. Gene Solano and Delilah Smith got out of the
bus, went into the 7-Eleven, and almost immediately exited the store. On their way out, they had a brief verbal
exchange with Pinto and Benson. Neither
Pinto nor Benson got out of the vehicle.
Upon returning to the bus, Solano and Smith warned the rest of the group
that the men in the van might cause trouble.
Jaime and Jorge left the bus and could hear yelling or arguing as they
walked across the parking lot. When Jorge
was making his purchases, he saw commotion and arguing in front of the store
and could clearly see people in the van, which was still parked in front of the
store.
title="">[1] He noticed the store clerk looking out the
window. Shortly thereafter, Pinto backed
his van out of the parking space and idled it, facing the group on the bus. Members of the group said that Pinto briefly
jumped out of the van and then got back in.
Three minutes later, Pinto drove forward, toward the group. He quickly reversed the van and then drove
into the group, hitting both Jorge and Francisco. Jorge was injured as a result. Francisco was killed almost instantly. Pinto fled the parking lot, dragging
Francisco’s body into the street under the van.
Veronica Rodriguez, one of the women on the bus, ran inside the 7-Eleven
and yelled for the store clerk, Mahmood Shams, to dial 9-1-1, which he did. Police
arrived at the scene approximately eight minutes after receiving the call.
The Lawsuit
On April
8, 2010, Elvira,
name="_ftnref2" title="">[2] Jaime, and Jorge sued the 7-Eleven
franchisees, Israr and Sadeeda.
complaint and a second amended complaint.
The operative second amended complaint, filed on January 25, 2011, alleged that defendants had reasonable cause to
foresee the events leading to Francisco’s death and the injuries to plaintiffs,
claiming negligence, wrongful death, gross
negligence, emotional distress and premises liability.
Plaintiffs claimed that Francisco’s
death, Jorge’s injuries, and the emotional distress suffered by Jorge and Jaime
were caused by defendants’ wrongful acts; specifically, by their failure to
prevent Pinto from driving his vehicle absent reasonable care and endangering
the safety of Francisco and Jorge.
Plaintiffs alleged defendants owned, maintained, controlled, managed,
and/or operated the 7-Eleven store, were responsible for the condition of the
premises, and contributed to the harm plaintiffs suffered. Plaintiffs claimed that defendants owed them
a duty of care as patrons or business invitees.
Defendants failed to take affirmative action to control Pinto, who was
on their premises, despite having reasonable cause to foresee the consequences
to plaintiffs. The complaint identified
events that allegedly led to the incident and asserted that there were measures
reasonably available to defendants to prevent what happened, including: “preventing patrons such as Pinto from
consuming drugs and alcohol while in their parking lot, failing to take steps
to avert . . . Pinto’s actions, failing to notify police of criminal activities,
failing to avert possible imminent fights, preventing loitering in its parking
lot, failing to warn patrons that they were in danger of substantial and
increased risk of bodily injury at the premises, having a policy and practice
of ignoring criminal activity on its premises, failing to provide adequate
security, and failing to otherwise exercise due care.â€
On February
23, 2011, defendants answered the second amended complaint, denying the
allegations and asserting numerous affirmative defenses. These included failure to state a cause of
action, intervening and superseding causation, and lack of causation.
On August
12, 2011, defendants filed their motion for summary judgment, a separate
statement of undisputed material facts, lodging of exhibits, and declarations
of Israr, Shams, Daniel Sullivan, and David Shapiro in support of the
motion. Defendants argued that the
incident was not reasonably foreseeable, and that they had no duty to
plaintiffs, or alternately, satisfied any duty to plaintiffs by calling the
police following the incident. They
further contended there was no evidence of causation. They asserted that they could not be held
liable as a matter of law.
On December
15, 2011, defendants filed a notice of filing of a duplicate and notarized
declaration of Israr and the duplicate and notarized declaration of Abrar
Siddiqui.
On December
20, 2011, plaintiffs filed their opposition to defendants’ motion for summary
judgment, evidence in support of plaintiffs’ opposition, plaintiffs’ objections
to evidence submitted by defendants, plaintiffs’ opposition to defendants’
separate statement of undisputed material facts, and plaintiffs’ separate
statement of additional facts.
On December 29, 2011, defendants
filed their reply to plaintiffs’ opposition to motion for summary judgment,
defendants’ reply to plaintiffs’ response to defendants separate statement of
undisputed material facts, defendants’ response to plaintiffs’ additional
facts, defendants’ response to plaintiffs’ objections to evidence, the
supplemental declaration of Israr, the declaration of Abrar Siddiqui,
defendants’ evidentiary objections to the declaration of Robert Gardner, and
the declaration of Lynda Kim.
On January
3, 2012, the trial court granted defendants’ motion for summary judgment. The court found that defendants did not owe a
duty to protect plaintiffs from harm and that plaintiffs failed to raise a
triable issue of material fact as to the element of causation. Additionally, the court overruled the
majority of plaintiffs’ evidentiary objections.
The trial court admitted the
untimely supplemental declaration of Israr and the declaration of Abrar.
On January
24, 2012, judgment was entered in defendants’ favor. Notice of entry of judgment was served on January 30, 2012. A timely
notice of appeal from the judgment was filed on March
2, 2012.
Summary
judgment is appropriate “if 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).) “The
moving party bears the burden to demonstrate ‘that there is no triable issue of
material fact and that [it] is entitled to judgment as a matter of law.’ [Citation.]
If the moving party makes a prima facie showing, the burden shifts to
the party opposing summary judgment ‘to make [its own] prima facie showing of
the existence of a triable issue of material fact.’ [Citation.]
‘There is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact in favor of
the party opposing the motion in accordance with the applicable standard of
proof.’ [Citation.]†(Avila
v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.)
In making and opposing motions for
summary judgment, the parties must include all material facts in their separate
statements and cite to evidence to support those facts. (Code Civ. Proc., §
437c, subds. (b)(1) & (b)(3).) The
trial court has discretion not to consider facts that are not referenced in the
moving or opposing parties’ separate statement.
(San Diego Watercrafts, Inc. v.
Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316.)
We review summary judgment orders de
novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (
as if we were sitting as the trier of fact.
[Citation.] Instead, we draw all
reasonable inferences from the evidence in the light most favorable to the
party opposing summary judgment.
[Citation.] All doubts as to the
propriety of granting summary judgment are resolved in favor of the opposing
party. [Citation.]†(Nadaf-Rahrov
v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961.)
“‘A different analysis is required
for our review of the trial court’s . . . rulings on evidentiary
objections. Although it is often said
that an appellate court reviews a summary judgment motion “de novo,†the weight
of authority holds that an appellate court reviews a court’s final rulings on
evidentiary objections by applying an abuse of discretion standard. [Citations.]’
[Citation.]†(
(2010) 187 Cal.App.4th 1326, 1335.)
The Trial Court’s Rulings on Plaintiffs’ Evidentiary Objections Do Not
Require Reversal of the Grant of Summary Judgment
A motion for summary judgment must
be supported “by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken.†(Code Civ. Proc. § 437c,
subd. (b)(1).) Evidence offered in
support of the motion must be admissible.
(City of Long Beach v. Farmers
& Merchants Bank (2000) 81 Cal.App.4th 780, 784 (City of Long Beach).)
Evidence is admissible if it “is capable of being admitted at trial,
i.e., evidence which is competent, relevant and not barred by a substantive
rule.†(Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles
(2004) 117 Cal.App.4th 1138, 1147.)
“Part of the judicial function in assessing the merits of a summary
judgment or adjudication motion involves a determination as to what evidence is
admissible and that which is not.†(
Accordingly, we first address the question of whether the trial court
abused its discretion in overruling plaintiffs’ evidentiary objections.
Plaintiffs made numerous objections
to defendants’ evidence, which the trial court ruled upon in groupings by type
and ultimately overruled in great part.
Defendants argue that plaintiffs have forfeited their objections on
appeal by failing to address each specific objection with particularity;
however, because the trial court structured its rulings into groupings of like
objections, to the extent that plaintiffs have sufficiently and specifically
challenged the rulings as to those groupings, we conclude they have preserved
those claims, and we will consider them here.
We will not, however, refer to plaintiffs’ evidentiary objections and
the arguments made therein with respect to each of the 65 separate objections,
as plaintiffs request. (See
(2011) 198 Cal.App.4th 1058, 1074 (Salas)
[where plaintiffs failed to challenge specific objections and make reasoned
arguments and citations to authority, they have forfeited their
challenge].) “‘We are not required to
search the record to ascertain whether it contains support for [plaintiffs’]
contentions.’ (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,
545.)†(Salas, supra, at p. 1074.)
We decline to do so here.
Finally, our review extends only to
those objections whose resolution is essential to our ruling. Even assuming the trial court erred in
overruling certain evidentiary objections, an erroneous evidentiary ruling
requires reversal only if “there is a reasonable probability that a result more
favorable to the appealing party would have been reached in the absence of the
error.†(Robertson v. Fleetwood Travel Trailers of California, Inc. (2006)
144 Cal.App.4th 785, 815; Cal. Const., art. VI, § 13; Evid. Code, § 354.)
Objections to
Israr Siddiqui’s Declaration
Israr’s declaration stated he was
the president of Fatima Stores, Inc., and the franchisee of the 7-Eleven at
issue since November 1, 2004. He had
never witnessed or been advised of any similar violent incident prior to the
one at issue. He had never received a
complaint from any person, business, or regulatory agency regarding safety
issues with the store. He had not
witnessed any violent tendencies on the part of Pinto, Benson, Jorge, Jaime,
Francisco, or any other individual in the bus group prior to the incident.
Israr further declared that he
arranged to obtain the surveillance footage from the store’s security camera
recorded on the night of the incident.
He was familiar with the procedures for obtaining copies of the
surveillance footage. He explained that
the surveillance footage sequenced images from one camera inside the store and
one camera outside the store on January 19, 2008, capturing the incident. He attested that the footage was not edited
or altered and identified a true and correct copy of the surveillance footage
depicting the incident.
name="_ftnref4" title="">[4]
Plaintiffs first object to the
declaration of Israr as untrustworthy and prejudicial on the basis that in his
deposition, which was conducted in Urdu, he indicated he did not understand the
meaning of some phrases contained in his declaration, which is written in
English. Plaintiffs have not indicated
where these alleged statements occur in the deposition or what Israr
purportedly misunderstood, nor have they provided legal authority in support of
their argument. They have therefore
forfeited this challenge to the trial court’s ruling. (See Salas,
Plaintiffs next object to Israr’s
declaration on the basis that the statements contained therein were not within
his personal knowledge but were instead based on hearsay and conclusions
reached upon viewing the surveillance video.
Israr’s declaration stated only that he was the franchisee of the
7-Eleven store, and that he was not personally aware of any similar violent
incident or any specific violence or violent tendencies concerning the parties
involved. The declaration did not state
that Israr was present at, or witnessed, the incident.
was not within his personal experience, and the trial court did not abuse its
discretion in overruling the objection.
Objections to
the Video Surveillance Footage
The surveillance footage from the
camera outside the store shows Pinto and Benson entering the 7-Eleven parking
lot at 1:44 a.m. on January 19, 2008.
Pinto and Benson were in the store for four minutes buying beer, soda,
and cigarettes. They were back inside
the van at 1:49 a.m. Five minutes later,
Solano and Smith entered the store. They
left the store within 30 seconds. Solano
and Smith had a verbal exchange with Pinto and Benson that lasted less than a
minute. They were at a distance from the
van, and neither Pinto nor Benson got out of the van. At 1:55 a.m., Pinto backed the van out of the
parking space and idled it facing in the direction of the bus group. The group was not visible in the surveillance
footage. Three minutes later, Pinto
drove the van in the direction of the bus group. Pinto quickly reversed the van, which came
into view of the surveillance camera briefly, and then drove toward the group
again.
The surveillance footage from the
camera inside the store shows Rodriguez running into the 7-Eleven a few minutes
after the van accelerated toward the bus group the second time and speaking
urgently to the store clerk who immediately dialed the phone at the counter.
During the time between Pinto and
Benson’s arrival and departure, the cameras show multiple persons entering the
store and making purchases.
Plaintiffs object to admission of
the surveillance video, which they claim lacked a proper foundation. A video recording is a “writing†under
Evidence Code section 250 and must be authenticated under the requirements of
Evidence Code section 1401. (
Cal.App.4th 436, 440, fn. 5.) Evidence
Code section 1400 provides:
“Authentication of a writing means (a)
the introduction of evidence sufficient to sustain a finding that it is
the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other
means provided by law.†Israr’s
declaration states that he was the franchisee of the store, was familiar with
the procedure for removing the store’s video camera, and that the video was a
true and correct copy that was not edited in any manner. His supplemental declaration, which was
accepted by the court, states that he removed the video and provided it to the
police. This evidence is sufficient to
sustain the finding that the video is what Israr declares it is. (McGarry
v. Sax (2008) 158 Cal.App.4th 983, 990 [“[A] video recording is
authenticated by testimony or other evidence that it actually depicts what it
is purported to show.â€].)
Plaintiffs further object to
admission of the surveillance video on the ground that it appears altered. Israr’s supplemental declaration explains
that the video appears to skip because it only captures footage when there is
an object moving within the camera’s view.
This explanation, based on Israr’s familiarity with the video equipment
in his store, was sufficient basis for the trial court to conclude the
requirement that defendants account for the appearance of alteration in the
video under Evidence Code section 1402 had been met. (Evid. Code, § 1402 [“The party producing a
writing as genuine which . . . appears to have been a altered . . . must
account for the alteration or appearance thereof.â€) Thus, the trial court did not abuse its
discretion in overruling plaintiffs’ objections to the surveillance video.
Objection to
Shams’s Declaration
Shams’s declaration stated that he
had been employed as a store clerk at the 7-Eleven for three and a half years
and was working there when the incident occurred. Two men entered the store before 2:00 a.m.,
made a purchase, and left. Shams later
discovered the two men were Pinto and Benson.
A man and a woman came into the store and asked to use the
restroom. They left immediately after
Shams informed them there was no public restroom. Sometime between 1:50 a.m. and 2:00 a.m.,
Shams was assisting a customer at the counter and observed people in the
parking lot but did not see any violence occurring. While he was still assisting the customer, a
woman ran into the store and asked him to call 9-1-1 because of something that
had occurred outside. Shams called
police and requested their assistance at the store. While he was speaking with police, another
woman came in and asked him to call 9-1-1.
The police arrived approximately eight minutes after Shams placed the
call to them.
Shams was unaware of any incident
until the woman ran in and told him to call the police. He did not witness any verbal or physical
exchange between Pinto, Benson, and the bus group. Shams did not anticipate that a physical
altercation might take place between Pinto, Benson, and the bus group. He had not observed Pinto or Benson smoking
or drinking before the incident occurred.
Shams did not see Pinto or Benson inside the store at the same time as
anyone in the bus group and did not observe Pinto or Benson talking about
anyone in the bus group, nor did he observe anyone in the bus group talking
about Pinto or Benson.
Shams never saw anyone in the bus
group, or Pinto or Benson, draw a weapon.
No one told him that they felt threatened or endangered, and no one
asked him to call police until after the incident occurred. Shams had not witnessed any similar violent
incidents on the premises prior to the incident. He had not witnessed or been told about any
violent tendencies of Pinto or Benson, or anyone in the bus group.
Plaintiffs object to Shams’s
declaration as untrustworthy and prejudicial on the basis that, like Israr, in
his deposition, which was conducted in Urdu, Shams indicated he did not
understand the meaning of some phrases contained in his declaration, which is
written in English. As with their
objection with respect to Israr’s, plaintiffs have forfeited this challenge by
failing to support it with factual evidence or citations to authority. (See Salas,
Other
Objections
Plaintiffs also object to counsel
Shapiro’s declaration, which purports to authenticate several exhibits in
support of the motion for summary judgment not discussed here. We need not decide whether the trial court
abused its discretion with respect to those objections, because even assuming
the identified documents were not properly authenticated or were inadmissible,
plaintiffs would still prevail as a matter of law.
The Trial
Court Correctly Ruled Defendants Did Not Owe Plaintiffs a Duty of Care
“To prevail on [an] action in negligence, plaintiff
must show that defendants owed [him or] her a legal duty, that they breached
the duty, and that the breach was a proximate or legal cause of [his or] her
injuries.†(Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 (
in Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.)
moving for summary judgment to show that plaintiff cannot establish one or more
elements of the cause of action. (Code
Civ. Proc., § 437c; Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) The burden then shifts to the plaintiff if
the defendant meets this burden. (
In general, no duty exists to
protect others from the criminal activity of third parties. (Tarasoff
v. Regents of University of California (1976) 17 Cal.3d 425, 435.) Courts recognize a special relationship
between business proprietors and their patrons or invitees, however, which
imposes the duty to “ ‘maintain land in their possession and control in a
reasonably safe condition’ and . . . [take] ‘reasonable steps to secure common
areas against foreseeable criminal acts of third parties that are likely to
occur in the absence of such precautionary measures.’ [Citations.]â€
(Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 237 (Delgado).)
“The existence and scope of a duty
are questions of law for the court’s determination, and foreseeability is a
critical factor in the analysis. When
foreseeability is analyzed to determine the existence or scope of a duty,
foreseeability is also a question of law.
[Citation.]†(
162 Cal.App.4th 1291, 1300 (Ericson),
fn. omitted.)
Courts employ a four-step analysis
when determining whether a duty of care exists.
“‘First, the court must determine the specific measures the plaintiff
asserts the defendant should have taken to prevent the harm. This frames the issue for the court’s
determination by defining the scope of the duty under consideration. Second, the court must analyze how
financially and socially burdensome these proposed measures would be to a landlord,
which measures could range from minimally burdensome to significantly
burdensome under the facts of the case.
Third, the court must identify the nature of the third party conduct
that the plaintiff claims could have been prevented had the landlord taken the
proposed measures, and assess how foreseeable (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 the landlord.’ [Citation.]â€
(Castaneda v. Olsher (2007) 41
Cal.4th 1205, 1214, citing Vasquez v.
Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 285.)
“In circumstances in which the
burden of preventing future harm caused by third party criminal conduct is
great or onerous . . . heightened foreseeability—shown by prior similar
criminal incidents or other indications of a reasonably foreseeable risk of
violent criminal assaults in that location—will be required. By contrast, in cases in which harm can be
prevented by simple means or by imposing merely minimal burdens, only ‘regular’
reasonable foreseeability as opposed to heightened foreseeability is
required.†(Delgado, supra,
Here, the specific measures that
plaintiffs claim defendants should have taken are requiring the store clerk to
patrol the premises; to monitor patrons’ activities inside and outside of the
store, particularly in the early morning hours; to warn patrons of increased
dangers; and to report illegal activities on the premises to the police. Plaintiffs assert that these measures are
minimally burdensome because there are already procedures in place for
monitoring of the store and parking lot, checking for dangerous conditions
including persons loitering or drinking alcohol on the premises, removing
persons who are engaging in illegal or suspect activities from the premises,
and alerting others to their presence.
While perhaps facially attractive, the argument fails to take into
account that when a single store clerk is assisting customers at the cash
register, he is not able to simultaneously attend to all of the aforementioned
duties and thwart criminal activity, particularly when an incident occurs
beyond the view of security cameras and without warning. Embedded in their request is the requirement
that all of these duties be performed in a space of less than ten minutes while
the store clerk is attending to his various other duties. When viewed within the lens of realistic
human capability, plaintiffs are, in essence, suggesting the equivalent of
requiring defendants to either employ a second clerk to be on duty at all times
to perform these functions or to hire security.
Our Supreme Court has held such a requirement to be a heavy burden on
business owners and has assessed the proprietor’s duty under a heightened
foreseeability standard, as we will here.
(See, e.g., 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; Sharon P., supra, 21 Cal.4th 1181.)
Balanced against this burden is the
great unlikelihood that this incident could have been foreseen. First, there was no evidence of prior similar
crimes having taken place at the 7-Eleven.
Israr attested that he had no knowledge of prior similar crimes and had
never been alerted to any by anyone. In
his deposition, he stated he was aware of robberies that had occurred in the
past, but robberies differ substantially in nature from deadly assault with a
vehicle—the presence of the one crime does not predict the other.
Moreover, there were no other signs
that such violent criminal activity would take place. There is no indication that Pinto and Benson
were acting suspiciously or aggressively when they entered the 7-Eleven and
made their purchases. After leaving the
store, they remained in the van and in the parking space for only a few
minutes. The verbal exchange that took
place between Solano and Smith and Pinto and Benson lasted less than a minute,
and there were no outward signs that the exchange was hostile. The parties were many feet apart for the
entire exchange, and neither Pinto nor Benson exited the van. After this short span of time, Pinto backed
the van out of the parking space and appeared to be leaving. Shams was behind the counter assisting a
customer when the incident occurred. No
one previously alerted him to the possibility that Pinto and Benson were
drinking alcohol and smoking marijuana or acting aggressively toward other customers. No one in the bus group expressed concern for
their own safety or for the safety of anyone in their group. There was simply no warning that Pinto, who
was in the parking lot for less than 10 minutes and had not had a visible
hostile interaction with anyone, would suddenly decide to drive his van into
the midst of a group of people, reverse, accelerate a second time, and then run
over people in the group, even if he had ingested alcohol or inhaled marijuana
in the few minutes that the van was parked before the incident began. Under these facts, only regular reasonable
foreseeability is required.
Plaintiffs’ argument that this case
is analogous to Delgado,
260 (Morris), where the court held
that a duty of care existed between the proprietor and customer or invitee, is
unpersuasive. Those cases are clearly
distinguishable because there was actual
notice to employees that a crime could likely occur, and as a result, the
burden on the proprietor was minimal.
In Delgado, the plaintiff and his wife were at a bar late at
night. Delgado got into a staring match
with another man and several of his friends.
There were two security guards at the restaurant—one inside and one
outside. Delgado’s wife talked to the
guard inside about the staring and expressed concern that there might be a
fight. The guard also observed the
tension between Delgado and the other men and became concerned that a fight
might break out at any minute, so he asked Delgado and his wife to leave. The guard did not escort the couple to their
car, nor did he prevent the other men from following Delgado outside. The guard’s outside counterpart was absent
from the lot. There was a group of 15-20
men standing outside, which the guard would have normally caused to disburse,
in keeping with the bar’s policy.
Instead, the men from inside the bar attacked Delgado and were aided by
the large group in the parking lot. (
The Delgado court refused to impose on the bar the burdensome duty of
hiring additional security in the absence of prior similar crimes or
indications that such a crime would occur but held that it did have a duty “to
respond to events unfolding in its presence by undertaking reasonable,
relatively simple, and minimally burdensome measures,†such as requiring the
inside guard to prevent the men following Delgado from leaving the bar or
confirming that the outside security guard was, in fact, present. (Delgado,
supra, 36 Cal.4th at p. 245.)
In Morris, a gang member came into a restaurant, first demanded and
then stole a large kitchen knife, and went into the parking lot and began
stabbing an invitee while the restaurant employees watched and did nothing to
prevent the attack. (
The Morris court also held the
restaurant had a duty of care to the victim, because its employees could easily
foresee the immediate danger to the victim and could have undertaken the
unburdensome task of dialing 9-1-1 to summon help. (Id.
at pp. 274-278.)
Here, the store clerk responded by
calling police when given actual notice of the incident, and thus met the
standard of care that the Delgado and
Morris courts imposed. The burden that plaintiffs wish to impose is
not the minimal one of summoning help or taking measures to diffuse a situation
that is known to the store clerk. It is
the much greater burden of ensuring that the store has adequate personnel on
hand to detect the possibility of a crime that has no precedent on the premises
in a very short span of time. In such a
situation, there is no such duty absent heightened foreseeability. (See, e.g. Ann M., supra,
following rape in shopping complex absent evidence of prior similar crimes];
[no duty to hire security or take other measures such as improving lighting,
reinstalling video cameras, or requiring existing personnel to conduct
walk-throughs of parking lot following sexual assault absent evidence of prior
similar crimes].) As we have discussed
here, the burden plaintiffs would impose on defendants is great, and the type
of harm that occurred was not reasonably foreseeable. Under these facts, we conclude that
defendants had no duty to plaintiffs and have met their burden of proof. Absent this essential element, plaintiffs
cannot prevail on their claims as a matter of law, and summary judgment is
appropriate.
Having determined that defendants
are under no duty to plaintiffs, we need not address whether there is a
causation.
DISPOSITION
The
order granting summary judgment and judgment in favor of defendants is
affirmed. Costs on appeal are awarded to
Israr Siddiqui and Sadeeda Akhtar Siddiqui.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
O’NEILL, J.
surveillance footage shows the van clearly for the time it was parked and does
not depict a commotion or confrontation involving anyone inside the camera’s
range.
was the mother of Francisco and his surviving heir.
