Filed 3/6/13
Mendoza v. Baca CA2/2 (unmodified version)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE
DISTRICT

DIVISION TWO


>

PETRA MENDOZA et al., Plaintiffs and Appellants, v. CONSUELO BACA, Defendant and Respondent.

B237292 (Los Angeles County Super. Ct. No. KC056160)

APPEAL from
a judgment of the Superior Court
of Los Angeles County. Peter J. Meeka. Affirmed.



The
Homampour Law Firm, Arash Homampour and Wendi O. Wagner; The Law Offices of
Thomas C. Zaret and Thomas C. Zaret for Plaintiffs and Appellants.



Lewis
Brisbois Bisgaard & Smith, William John Rea, Jr. and Roy G. Weatherup for
Defendant and Respondent.







Plaintiffs
and appellants Petra Mendoza, Christopher Mendoza, and Steven Mendoza
(collectively, plaintiffs) appeal from the summary judgment entered in favor of
defendant and respondent Consuelo Baca (Baca) in this wrongful death action
based on negligence and premises liability.
We affirm the judgment.

BACKGROUND

The parties

Plaintiffs are the wife and
children of decedent Bernardo Mendoza (Mendoza),
who was shot and killed at a neighborhood bar and restaurant called “My
Place.” Baca was the owner of My Place
at the time Mendoza was killed.

Factual background

Mendoza and Baca were present at
My Place on November 3, 2007,
as were other patrons of the bar. Julio
Duenas (Duenas) arrived at My Place at approximately 7:00 p.m. that night.

At some
point during the evening, Duenas and other customers began arguing about who
was responsible for paying musicians who had performed on the premises. As the men argued, Baca saw Duenas strike
another customer. Baca told Duenas to
stop or she would call the police.
Duenas then struck Baca, and a customer named Alejandro Garcia (Garcia)
intervened to defend Baca.

Duenas and
Garcia left the premises to take their dispute outside. Baca telephoned the police, but was unable to
speak to a dispatcher until after Duenas had left the premises. Baca told the dispatcher that the altercation
had ended and that Duenas had left.

Shortly
after Duenas left My Place, he returned.
When Baca learned that Duenas had returned, she locked both the front
and back doors to My Place to prevent him from entering. Minutes later, Duenas broke through the front
door, shooting a gun. A bullet struck
Baca in the back. Another bullet struck Mendoza,
killing him. Baca telephoned the police
as she lay bleeding behind the bar.
Police subsequently arrested Duenas, who was convicted of murdering
Mendoza.

Procedural background

Plaintiffs filed this wrongful death action against Baca,
asserting causes of action for negligence and premises liability. Baca moved for summary judgment on the
grounds that she owed no legal duty to Mendoza to prevent his death because his
murder was unforeseeable, and because her actions and/or omissions were not the
legal cause of Mendoza’s death. In
support of her motion, Baca submitted her own declaration in which she averred
that during the 17 years she owned My Place, there had never been a shooting on
the premises. Baca further stated in her
declaration that she had never seen Duenas before the incident and knew nothing
about his background, Duenas did not tell her that he intended to return to My
Place or to exact retribution, and she had no reason to believe that Duenas
would return to shoot her and her customers.

Plaintiffs
opposed the summary judgment motion, arguing that Baca failed to meet her
burden of establishing no duty or lack of causation and that triable issues of
material fact existed regarding the issues of duty, breach of duty, and
causation. Plaintiffs disputed the fact
that Baca did not know Duenas intended to return to exact retribution. They offered in opposition the declaration of
a customer named Jesus Mendoza, who stated that Karina Lopez, a waitress
working at My Place on the night of the incident, blurted out a few days after
the incident that she had heard Duenas vow to return to My Place to shoot. Plaintiffs also disputed the fact that Baca
knew nothing about Duenas’s background.
They offered in opposition the deposition testimony of responding Los
Angeles County Sheriff’s Deputy Phillip Martinez, who testified that he
interviewed the owner of the SUV Baca had observed outside My Place shortly
before the incident. The owner of the
vehicle told Deputy Martinez that Duenas was a member of the 38th Street gang
and that Duenas had the number 38 tattooed on his inner forearm.

Plaintiffs
disputed that the doors to My Place remained locked after Duenas left the
premises initially. They offered
evidence that the front entrance to My Place was secured by two doors -- an
outer iron gate and an inner wood door -- and that although Baca locked both
the gate and the wood door after Duenas initially left the premises, she
subsequently unlocked both the gate and the door in order to let a musician
out. When Baca did so, she saw an SUV
and wrote down its license plate number.
She then locked the wood door only, and Duenas later pushed his way
through that door to enter the premises.

Plaintiffs
offered evidence to establish that Baca was afraid when a group of men,
including Duenas, first entered the bar both because of the size of the group
and because she knew that one of the men owned a ranch at which guns had been
fired. Plaintiffs also offered evidence
that Baca had no security to frisk these men and did not know if they had guns
or access to guns, and that Baca had no training in self-defense or in security
measures for a bar, and never had anyone to advise her on security
measures. Finally, plaintiffs offered
evidence that Baca was the owner of the El Castillo Night Club from 1995 to
2005, and on one occasion in 1999, a shooting occurred there.

Both
parties filed objections to each other’s evidence. The trial court overruled all the evidentiary
objections. The court granted
plaintiffs’ request for judicial notice of the preliminary hearing transcript
in People v. Duenas, the criminal
case in which Duenas was convicted for Mendoza’s murder; and a copy of the
respondent’s brief, the transcript of Baca’s deposition, and the published
appellate court decision in Lopez v. Baca
(2002) 98 Cal.App.4th 1008 (Lopez),> a civil action against Baca by the
victim of the 1999 shooting at the El Castillo Night Club. In doing so, the trial court took judicial
notice of the existence of the preliminary hearing transcript in >People v. Duenas and the existence of
Baca’s deposition transcript in Lopez,
but not the contents of those documents.
With respect to the appellate opinion in Lopez, the trial court took judicial notice of the existence of the
opinion and the result reached, but did not take judicial notice of the
statement of facts for the truth of those matters.

In ruling
on the motion for summary judgment, the trial court concluded that Baca had met
her burden of proving that plaintiffs could not establish the element of duty
because it was not reasonably foreseeable that Duenas would return to My Place
to shoot its patrons. The trial court
further concluded that plaintiffs failed to establish any triable issue of
material fact as to the foreseeability of Duenas’s actions and whether Baca
owned a duty to protect Mendoza from those actions. Summary judgment was entered in Baca’s favor,
and this appeal followed.

DISCUSSION

I. Standard of review

Summary judgment is granted when a moving party
establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
(c).) A defendant moving for summary
judgment bears the initial burden of proving that there is no merit to a cause
of action by showing that one or more elements of the cause of action cannot be
established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Cucuzza
v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing,
the burden shifts to the plaintiff to show that a triable issue of one or more
material facts exists as to that cause of action or as to a defense to the
cause of action. (Aguilar v. Atlantic
Richfield Co. (2001) 25
Cal.4th 826, 849.) If the plaintiff does
not make such a showing, summary judgment in favor of the defendant is
appropriate. In order to obtain a
summary judgment, “all that the defendant need do is to show that the plaintiff
cannot establish at least one element of the cause of action . . . . [T]he defendant need not himself conclusively
negate any such element . . . .”
(Id. at p. 853.)

We review the trial court’s grant of summary judgment de
novo and decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30
Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s evidentiary
rulings in connection with a summary judgment motion under the abuse of
discretion standard. (>Carnes v. Superior Court (2005) 126
Cal.App.4th 688, 694.)

II. Duty and
foreseeability

The elements of plaintiffs’ causes of action for negligence
are duty,
breach of duty, causation, and damages.
(Melton v. Boustred (2010) 183
Cal.App.4th 521, 529.) The same
foundational elements must be established for a cause of action for premises
liability based on negligence. (>Ortega v. Kmart Corp. (2001) 26 Cal.4th
1200, 1205.) The key element in this case is duty, the existence of which is
a question of law. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (>Ann M.) disapproved on other grounds in >Reid v. Google, Inc. (2010) 50 Cal.4th
512, 527, fn. 5.) “Duty ‘may be imposed
by law, be assumed by the defendant, or exist by virtue of a special
relationship.’ [Citation.]” (Melton
v. Boustred, supra, 183 Cal.App.4th at pp. 529-530.)

“[A]s a general matter, there is no
duty to act to protect others from the conduct of third parties. [Citations.]”
(Delgado v. Trax Bar & Grill (2005)
36 Cal.4th 224, 235 (Delgado).) However, “[a] defendant may owe an
affirmative duty to protect another from the conduct of third parties if he or
she has a ‘special relationship’ with the other person,” such as the
relationship between a bar owner and its patrons or invitees. (Ibid.) In such a case, the general duty of
maintenance “include[s] the duty to 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.]” (>Ann M., supra, 6 Cal.4th at p. 674,
italics added.)

Foreseeability is a crucial factor
in determining the existence of such a duty.
(Ann M., supra, 6 Cal.4th at
p. 676.) “[A] duty to take affirmative
action to control the wrongful acts of a third party will be imposed only where
such conduct can be reasonably anticipated.
[Citations.]” (>Ibid.)
Foreseeability is determined in light of the totality of the
circumstances. (Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398,
406 (Sakiyama).)

With the benefit of hindsight,
almost any result is foreseeable. For
this reason, foreseeability alone is not sufficient to create an independent
duty of care. (Sakiyama, supra, 110 Cal.App.4th at p. 407.) The existence of a duty therefore depends not
only on the foreseeability of the risk but also a weighing of policy
considerations for and against the imposition of liability. (Ibid.) “‘Because the consequences of a negligent act
must be limited to avoid an intolerable burden on society [citation], the
determination of duty “recognizes that policy considerations may dictate a
cause of action should not be sanctioned no matter how foreseeable the
risk.” [Citation.] “[T]here are clear judicial days on which a
court can foresee forever and thus determine liability but none on which the
foresight alone provides a socially and judicially acceptable limit on recovery
of damages for [an] injury.”
[Citation] In short,
foreseeability is not synonymous with duty, nor is it a substitute.’ [Citation.]”
(Ibid.)

III. Baca met her initial burden of establishing
no duty to prevent the criminal act

Baca met her initial burden of
establishing that she owed no duty to prevent Mendoza’s death in this case
because it was not reasonably foreseeable that Duenas would return to My Place
to shoot its patrons. Baca presented
evidence that there had never been a shooting at My Place during her 17 years
of ownership. She had never seen Duenas
before the night of the shooting and knew nothing about his background. Duenas did not tell Baca that he intended to
return or to exact retribution after he left the premises initially.

IV. No triable issue as to duty

Plaintiffs failed to raise any triable issue as to
foreseeability. In an effort to
establish foreseeability, plaintiffs presented evidence that a waitress working
at My Place on the night of the incident told a customer several days after the
incident that she had heard Duenas say he was returning to the bar to shoot.href="#_ftn1" name="_ftnref1" title="">^[1] There is no evidence, however that Baca heard
Duenas make such a statement. Plaintiffs
also presented evidence that Duenas had the number 38 tattooed on his inner
forearm, allegedly designating him as a member of the 38th Street gang but
offered no evidence that Baca saw the tattoo or recognized its
significance. Plaintiffs’ evidence that
Baca became nervous when a group of men, including Duenas, entered the bar,
because of the size of the group and because one of the men owned a ranch at
which people allegedly shot guns, and that Baca knew that customers who
consumed alcohol might act unreasonably or become violent, does not support the
conclusion that Baca knew or should have known Duenas would return to My Place
to shoot its patrons. That Baca was a
defendant in Lopez, a prior civil
action by a nightclub patron who was shot at a different business establishment
owned by Baca more than seven years before the incident at issue here does not
establish the foreseeability of Duenas’s actions in this case. Moreover, in that prior action, summary
judgment was affirmed in Baca’s favor because the court found that Baca owed no
duty to the victim because the shooting was unforeseeable as a matter of
law. (Lopez, supra, 98 Cal.App.4th at
p. 1015.)

Plaintiffs cite Delgado as support for their claim that Baca’s “special
relationship” with Mendoza as the owner of a bar patronized by him created a
duty to protect Mendoza from Duenas’s criminal conduct. In Delgado,
our Supreme Court reaffirmed the “well established” principle that commercial
proprietors have a duty to 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.]” (Delgado,
supra, 36 Cal.4th at p. 237, italics added.) The court in Delgado did not abrogate foreseeability as a crucial factor in
determining the existence and scope of the duty owed by a commercial proprietor
to its patrons but set forth a “sliding-scale balancing formulation” for
determining the scope of that duty:

“In circumstances in which
the burden of preventing future harm caused by third party criminal conduct is
great or onerous (as when a plaintiff . . . asserts the defendant had a legal
duty to provide guards or undertake equally onerous measures, or as when a
plaintiff . . . asserts the defendant has a legal duty to provide bright
lighting, activate and monitor security cameras, provide periodic
‘walk-throughs’ by existing personnel, or provide stronger fencing), 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, 36 Cal.4th> at pp. 243-244, fn. 24.)

Plaintiffs claim the trial court’s
analysis in this case was faulty because it was premised solely on Baca’s
alleged failure to hire security guards and the “high degree of foreseeability”
required to impose such a duty, and that the trial court ignored the
“sliding-scale balancing formulation” set forth in Delgado. They claim a
substantially lower threshold for determining foreseeability should have been
applied because they alleged that Baca could have taken other reasonable,
relatively simple, and minimally burdensome measures to prevent Mendoza’s
death, such as “inform[ing] police of the threat, warn[ing] the patrons of MY
PLACE of the threat” or “clos[ing] MY PLACE as a result of the threat.”

The statement of decision makes
clear that the trial court did not apply an elevated threshold of
foreseeability but rather properly determined whether Duenas’s violent criminal
act was “reasonably” foreseeable under the circumstances. The trial court also addressed plaintiffs’
allegations regarding additional measures Baca could have taken, noting that
the same result could have occurred even if Baca had taken such measures. The court observed that plaintiffs’ own
evidence showed the existence of a window at the front of the bar through which
Duenas could have fired his gun.
Plaintiffs’ conclusion that Baca could have prevented Duenas from
shooting is speculative, at best.

The same reasoning applies to plaintiffs’
argument that Baca may be held liable for negligently undertaking to protect
Mendoza and the other patrons by calling 911 in response to Duenas’s physical
altercation with Garcia but then telling the dispatcher that no police response
was necessary because Duenas had already left the premises and by initially
locking the doors to the premises after Duenas’s departure but subsequently
unlocking the front door through which Duenas forced his way back in. As the trial court noted, there is no
evidence to suggest that Baca’s actions or omissions encouraged the
shooting. Rather, the evidence showed
that Baca attempted to prevent further violence in her bar by calling the
police when the physical altercation between Duenas and Garcia first started,
locking the doors when she learned that Duenas had returned, and writing down
the license plate number of the vehicle Baca observed parked near her bar.

There is no
evidence to support plaintiffs’ assertion that Baca’s actions created a
dangerous condition at the premises.
Providing musical entertainment, albeit not allowed under the terms of
Baca’s business license, and requiring customers to pay for requested songs did
not, as plaintiffs suggest, create a dangerous condition that caused the
shooting. Mendoza’s injuries were not closely connected to Baca’s
actions but instead were caused by Duenas’s act of firing multiple rounds from
his gun into the bar.

V. Alleged evidentiary errors

Plaintiffs challenge the trial
court’s evidentiary rulings limiting judicial notice of the preliminary hearing
transcript in People v. >Duenas and the transcript of Baca’s
deposition in Lopez to the existence
of those documents and excluding their contents. They claim Baca’s testimony at the
preliminary hearing came within the state of mind of an exception to the
hearsay rule because her statement that she did not want the police to respond
to My Place during her initial 911 call was offered to show the effect of that
statement on the police rather than to prove the truth of the statement itself. Plaintiffs further claim Baca’s deposition
testimony in Lopez, the prior civil
action involving the 1999 shooting at the El Castillo Night Club, was offered
to show Baca’s motivation to make money from customers by “scamming” them
without their knowledge. Plaintiffs fail
to establish how the effect of Baca’s statements on the 911 dispatcher or the
motivation underlying Baca’s business practices at the El Castillo Night
Club seven years ago are relevant to the foreseeability of Duenas’s actions in
this case. The trial court did not abuse
its discretion by limiting judicial notice of those documents.

Summary
judgment was properly granted in this case.

DISPOSITION

The
judgment is affirmed. Baca is awarded
her costs on appeal.

NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.



_____________________________,
J.

CHAVEZ

We concur:



____________________________, P. J.

BOREN



____________________________, J.

ASHMANN-GERST