target="B239684M_files/props0002.xml">
Ortiz v. Siddiqui
Filed 7/10/13 Ortiz
v. Siddiqui CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
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)
THE COURT:*
It
is ordered that the opinion filed herein on June 24, 2013, and not certified
for publication, be modified as
follows.
At
the bottom of page 12, line 5 of the paragraph under the subheading “Other
Objections,†replace “plaintiffs†with “defendants.â€
There
is no change in the judgment.
________________________________________________________________________
* TURNER,
P. J. KRIEGLER,
J.
Filed 6/24/13 (unmodified
version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
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 Los Angeles 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 summary judgment in this action 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.
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.
name="_ftnref1" 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.
DISCUSSION
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.]†(
(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. (
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 (Aguilar).) “We do not resolve conflicts in the evidence
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.]†(Miranda
v. Bomel Construction Co., Inc. (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.â€
(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.†(
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.†(City
of Long Beach, supra, at p.
784.) 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 Salas
v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 (
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.†(
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.
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.
title="">
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.
(Jones v. City of Los Angeles
(1993) 20 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.â€
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
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.†(
Cal.4th 1181, 1188 (Sharon P.),
disapproved on other grounds in Aguilar,
supra, 25 Cal.4th at p. 853, fn.
19.)
title="">
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.]†(Ericson
v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1300 (
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.]†(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.†(
243, fn. 24.)
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,
supra, 36 Cal.4th 224 and
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
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. (Delgado,
supra, 36 Cal.4th at p. 231.)
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
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.
(Morris, supra, 36 Cal.4th at pp. 265-267.)
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, 6 Cal.4th 666 [no
duty to hire security following rape in shopping complex absent evidence of
prior similar crimes]; Sharon P.,
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 triable issue of fact with respect to 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.
name="_ftn1" title="">[1] Video
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.
name="_ftn2" title="">[2] Elvira
was the mother of Francisco and his surviving heir.
