Garcia v. AINW Corp. CA4/1

Opinion

Filed 9/2/26 Garcia v. AINW Corp. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GILBERT GARCIA et al., D085487

Plaintiffs and Appellants,

v. (Super. Ct. No.

37-2023-00034107-CU-PO-NC)

AINW CORPORATION et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego, Cynthia A. Freeland, Judge. Affirmed.

Hoffman & Forde and Michael D. Dicks; Poli, Moon & Zane and Michael N. Poli, for Plaintiffs and Appellants.

Lagasse Branch Bell Kinkead and Sevan Gobel, Artin Avetisove, Jeffrey Tsao for Defendants and Respondents.

Plaintiffs and appellants Gilbert Garcia and Veronica Garcia1 appeal a summary judgment in favor of defendants and respondents AINW Corporation and Ronald Crilley on plaintiffs’ second amended complaint for negligence, loss of consortium, liability for third party criminal conduct and premises liability stemming from Garcia’s injuries suffered at defendants’ bar when he was pushed to the ground by another patron. Plaintiffs claimed in part that Crilley agreed to host an event that included the Hells Angels Motorcycle Club (Hells Angels), but failed to implement adequate safety and security protocols that day in disregard for Garcia’s safety, resulting in Garcia suffering a traumatic brain injury. Excluding some of plaintiffs’ evidence, the court ruled defendants had demonstrated plaintiffs could not establish they owed Garcia a duty of care or that any additional precautions would have prevented his injuries. It ruled Garcia did not show the high degree of foreseeability needed to impose a duty of care, namely defendants’ actual knowledge of past similar incidents occurring on the property, nor did he present evidence that the assailant had caused any issues before the incident or was even affiliated with the Hells Angels.

Garcia contends the court erred by granting summary judgment.

Claiming error in some of the court’s evidentiary rulings and asserting defendants’ spoilation of videotape evidence warrants evidentiary sanctions, he argues the properly admitted evidence demonstrates defendants owed him a duty of care as a matter of law. He further contends the properly admitted evidence creates genuine issues of material fact on causation; that is, he presented both direct and circumstantial evidence showing reasonable security measures would have prevented his injuries. We disagree with his contention on the issue of duty, and affirm the judgment.

1 We refer to Gilbert Garcia as Garcia throughout.

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FACTUAL AND PROCEDURAL BACKGROUND In this review of a summary judgment, we state the undisputed facts and liberally construe the evidence in support of plaintiffs, resolving evidentiary doubts in their favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) We take the facts from the record that was before the trial court when it ruled on the motion (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 620), and consider all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Gonzalez, at p. 39.) The Incident In February 2023, the Hells Angels asked Crilley if a large group could stop by his Cardiff bar—the Kraken—on March 4, 2023. On that day, Crilley staffed the place with two security guards and a bartender who was “like security.” It was the second time the Hells Angels had come to the bar; the first time they held a fundraising event and were friendly, courteous, and policed themselves. However, on that occasion, Crilley notified the police department that they would be there. Crilley considered the Hells Angels group to be great customers; they had never been a problem for him. The local sheriff’s department got wind of the gathering and put together a special detail to ensure public safety at the bar and surrounding area.

Between 100 and 150 individuals came to the bar on March 4, 2023. A majority of the Hells Angels group arrived between 10:00 a.m. and noon, and a majority left by 2:00 or 3:00 p.m. Crilley left the bar at about the same time.

That afternoon, Garcia, who had earlier been to a different bar, arrived at defendants’ bar, where he was a regular patron. There were approximately 15 people there. Garcia had a cocktail and half of a beer, then

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left. He later returned to the bar. This time, an interaction occurred where a large individual with a long ponytail and a handlebar-style mustache wearing a black leather jacket pushed Garcia to the ground. Neither Garcia nor Crilley knew the individual’s identity. Surveillance cameras captured portions of the incident. As a result, Garcia suffered a traumatic brain

injury.2 Plaintiffs’ Lawsuit and Defendants’ Summary Judgment Motion Plaintiffs sued defendants, eventually filing a second amended complaint alleging causes of action for negligence and negligence per se, loss of consortium, property owner liability for third party criminal conduct, and premises liability on the theories of dangerous condition and failure to protect patrons. They alleged defendants intended to injure Garcia by failing to implement adequate safety and security protocols on the day in question, and bypassed safety protocols that were a substantial and proximate factor in causing him harm. Plaintiffs alleged defendants owed a nondelegable duty to take reasonable steps to provide adequate security and other reasonable precautions to ensure the safety of persons on the premises, but violated those duties in various ways, including in their hiring, training and supervising employees; permitting and inviting dangerous persons to access and remain on the premises; failing to respond to threats to the safety of

2 Though the court issued tentative rulings on defendants’ objections to a report and declaration submitted by plaintiffs’ medical expert, David Fish, it omitted any ruling on those objections in its final minute order. In such a case, we “ ‘presume[ ] that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 853, quoting Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) The burden is on the objector to renew the objections in the Court of Appeal. (Reid, at p. 534; Union Pacific Railroad Co. v. Superior Court (2024) 105 Cal.App.5th 838, 849.)

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patrons, invitees, and others; negligently managing and operating the premises; and failing to provide for a safe environment. They alleged that but for the defendants’ negligence in allowing and encouraging the presence of threatening and dangerous persons at the bar, Garcia would not have been injured. Plaintiffs alleged defendants had a duty to use reasonable care to prevent reasonably anticipated criminal conduct, and on the date of the incident, they knew of or should have reasonably anticipated that a known dangerous motorcycle club would be a threatening and dangerous group with a higher chance of committing criminal conduct than a typical bar patron, but did not take adequate and reasonable steps to protect persons like Garcia. They alleged defendants’ conduct constituted a negligent maintenance of a dangerous condition on their property. According to plaintiff, the presence of the dangerous motorcycle group created an unreasonable risk of harm to other bar patrons, but defendants failed to give adequate warnings or protect against the possibility of harm caused by their presence.

Defendants moved for summary judgment or alternatively summary adjudication on grounds the undisputed evidence showed they did not owe plaintiffs a duty to provide security guards or to otherwise protect Garcia or intervene in the subject incident. They argued plaintiffs’ factually devoid discovery responses showed they could not establish one or more elements of their cause of action. They further argued plaintiffs could not prove any act or omission by them proximately caused Garcia’s injuries. Specifically, they pointed out Garcia did not know the identity of the individual who pushed him, or possess information that would lead plaintiffs to believe the man was a Hells Angels member. Defendants argued with respect to third party crimes that they did not invite or organize the event, and their prior experiences with the Hells Angels were positive and did not result in

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problems. Defendants argued Garcia could not show the heightened foreseeability—the existence of prior similar incidents on the premises— required to impose a duty on them to provide security for the event. Further, they argued Garcia was injured after the event had concluded and there was no evidence showing the assailant was part of the event, thus, even if they owed a duty to provide security, the duty had ended two hours before the incident. Finally, defendants argued the altercation was not foreseeable; the assailant was not involved in any conflict or disputes with anyone beforehand, they did not receive any reports of threats or problems, and there was no reason to believe the individual posed a danger. They argued they owed no duty to evict the man, as there was no evidence he was linked to the Hells Angels or they knew he was a dangerous individual.

Defendants submitted deposition excerpts from Garcia, Crilley and his bartender from that day, as well as that of a task force sheriff’s deputy, Ken Colburn, who had reviewed surveillance video footage, still photos of the assailant, and a sheriff’s crime/incident report. Deputy Colburn testified that he had viewed and recorded on his department-issued phone surveillance video from defendants’ bar showing an altercation and shoving between two

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individuals, then one figure being pushed and falling down.3 He testified that when he returned to the bar days later, that video was no longer available. Deputy Colburn did not know the assailant and could not place him as a Hells Angels member, only “[p]ossibly just an associate . . . .”

Plaintiffs opposed the motion. They sought to present evidence—

including from a California Department of Justice Report—that the Hells Angels was one of the oldest and largest “outlaw motorcycle gangs” known to be heavily involved in criminal activity. They pointed that while Crilley claimed to have reviewed video footage documenting the incident, he assertedly lost or destroyed it. Plaintiffs stated that the existing camera footage did not show Garcia, but did show interaction between a Hells Angel and the assailant. They argued defendants did not meet their burden to show plaintiffs could not demonstrate a prima facie case, but there were material facts in dispute in any event. In particular, they pointed out Crilley had admitted he had alerted law enforcement for a previous Hells Angels event at his bar, showing he knew they were a problem and posed a danger.

3 When asked to say what he saw in the video, Deputy Colburn testified: “It appeared that there were—the camera was facing the bar. You see you— kind of got to see about half of let’s say where the bar is located inside the location, inside the building. And it appeared there was an altercation between at least two individuals. Some shoving occurred. And then it was really more you can see from the shadow as opposed to the actual physical person, but it appeared that you could see the shadow, just given the way that the sun, the light was coming through a window, that a figure was pushed and then fell down. Kind of tough to put together, but—” Plaintiffs’ counsel then asked, “Did I provide you with a video? That video that you took, did I provide you with that video yesterday?” Deputy Colburn confirmed that counsel had, that he had reviewed it, and it was the same video that he had initially recorded. When shown the video, Deputy Colburn stated it “appeared there was a couple of pushes,” then agreed that the force of the second push sent Garcia stumbling backwards hitting his head on the concrete.

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They countered defendants’ facts with a declaration from a law enforcement expert on outlaw motorcycle gangs, Steven Cook, who recounted Hells Angels history, described some of their crimes, and discussed biker-related events at defendants’ bar. In part, Cook stated that the Hells Angels club “has a long history of documented criminal activity in several states” and that its “[m]embers have been charged and convicted of murder, assault, weapons possession and drug trafficking.” He stated, “Hells Angels are well known for

engaging in violence in public venues to include bars and restaurants.”4 Cook also attempted to describe the events shown on the video, and gave his view of the “normal practice” of the “full patch member” and the assailant, who he characterized as a “male associate of the Hells Angel[s].”

Plaintiffs argued defendants inaccurately identified the relevant duty:

their contention was that defendants had a duty to refuse to host a gathering of a criminal organization like the Hells Angels and alternatively that they needed to take special security precautions to compensate for the heightened

4 The trial court excluded other statements by Cook about the Hells Angels’ criminal activity as irrelevant, based on hearsay, and/or lacking foundation. For example, the court sustained relevance objections to Cook’s statement: “Although acts of violence have been committed by the Hells Angels all over the United States[,] members in and around San Diego are well known for engaging in such acts in San Diego County. In October 2002[,] in El Cajon, [California] Mongols associate Conrad Van Hoose was stabbed to death at Dumont’s which was known to be a “biker bar[.”] During the conflict he was able to shoot and wound Hells Angel Bobby Perez.” It sustained a similar objection to Cook’s statement: “More recently on June 6th, 2023, in Ocean Beach[,] 17 members and associates of the San Diego charter of the Hells Angels were charged with the violent assault of three African American men on Newport Avenue in Ocean Beach. A possible motive involved the males speaking to a female associate of the Hells Angels. One of the victims was stabbed and another was beaten. The third victim managed to get away.”

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risk of their business decision.5 Plaintiffs asked the court not to rely on Crilley’s declaration, which they characterized as self-serving and inconsistent. They argued the absence of prior occurrences did not establish a lack of foreseeability, but the court was required to consider other factors such as the fact defendants hosted a gathering for a violent criminal organization.

Plaintiffs further argued that defendants did not meet their burden as to causation. They argued none of the asserted facts defendants relied on were dispositive as to whether the assailant was a Hells Angel or Hells Angel associate; according to them, “[a] jury could still view the video evidence of the event, and reasonably determine based on that evidence alone, that the assailant was an associate or member of the Hells Angels. After all, he appears to take orders from a Hells Angel. He dresses like a Hells Angel. He wears his hair and mustache like a Hells Angel. Just because conveniently selected witnesses, with their statements ripped from their context, do not say they knew that the assailant was a Hells Angel, does not show that he was not, in fact, a Hells Angel.” Plaintiffs argued that defendants’ evidence did not shift the burden by pointing to factually devoid discovery responses, but plaintiffs’ evidence raised triable issues of material fact as to defendants’ duty to take additional security measures, the foreseeability of Garcia’s injuries, and whether defendants’ breach of their duty caused Garcia’s injuries. Plaintiffs asked the court to consider Cook’s declaration as well as that of Veronica Garcia concerning Garcia’s injuries, and portions of the

5 Plaintiffs listed those precautions as: “1) close the Kraken to the public during the time period of the event, and ensure the Hells Angels had vacated the premises prior to opening the Kraken back up to the public; 2) provide segregated areas of the premises, one for the Hells Angels event and one for the public; and/or 3) provide heightened security in the form of multiple security guards with training suitable to the event.”

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sheriff’s crime/incident report prepared after the incident. They asked the court to take judicial notice of a 2010 Annual Report to the Legislature on Organized Crime in California from the California Department of Justice (the 2010 Annual Report), which included background information concerning the Hells Angels. Plaintiffs objected to portions of Crilley’s and his bartender’s declarations, and to Deputy Colburn’s deposition excerpts.

In reply, defendants argued plaintiffs did not dispute that defendants lacked actual knowledge of the Hells Angels’ dangerous propensities, that at the time of the incident the Hells Angels event had concluded, and that Garcia’s entire interaction with the assailant lasted 10 seconds or less. They argued that even if plaintiffs’ evidence created a triable issue about the existence of a duty, it did not as to causation. Defendants argued the law prohibited them from excluding individuals on the basis of dress, appearance, reputation or suspicion of criminal tendencies. They argued it was undisputed that the Hells Angels event had ended by the time the confrontation occurred, and thus segregating suspected members during the event would have made no difference. Finally, pointing to the confrontation’s short duration, defendants argued it was undisputed that security was on the way to address the confrontation seconds after it occurred, showing there was no reason to believe a handful of additional security would have deterred the assailant. They argued plaintiffs’ proposed measures would not have covered the confrontation, so there was no causal connection. As to causation, defendants argued that the duties posed by plaintiffs were “nothing more than abstract negligence” and could not support their claims.

With respect to duty, defendants argued the confrontation was not foreseeable, and plaintiffs could not establish the sort of heightened foreseeability of the criminal assault to establish a duty by defendants to

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refuse the assailant service, eject him from the bar, or have additional security hours after the Hells Angels event had ended. Defendants criticized plaintiffs’ expert declarations on grounds they could not establish a duty, which was a question of law for the court. Defendants also filed numerous objections to plaintiffs’ evidence. The Court’s Ruling

Making detailed rulings on the parties’ evidentiary objections,6 the trial court granted summary judgment in defendants’ favor. The court ruled defendants met their burden to show a legal duty of care did not exist under the circumstances, and plaintiffs had not demonstrated otherwise. It acknowledged business owners had a duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties likely to occur in the absence of such precautionary measures, but the law required an “ ‘extraordinarily high degree of foreseeability . . . .’ ” The court rejected the plaintiffs’ arguments as to defendants’ asserted duties to refuse to host the event, close the bar to the public and/or segregate the Hells Angels during the event, stating plaintiffs “provide no admissible evidence, other than mere speculation, that such precautions would have prevented Mr. Garcia’s injuries.” It relied on undisputed evidence that the incident did not occur

6 In addition to the rulings mentioned above (see footnote 4, ante), the court ruled the video evidence spoke for itself and did not support the testimony, some of which lacked foundation, and thus it sustained objections to portions of Cook’s declaration in which he purported to recount events on the video, as well as his characterization that the assailant was an associate and whether he was “under the control/influence” of the Hells Angels “full patch” member. It took judicial notice of the existence of the 2010 Annual Report on organized crime but not the truth of the matters asserted in it. The court sustained as irrelevant and improper opinion objections to the entirety of Veronica Garcia’s declaration recounting Garcia’s medical status. It excluded portions of the sheriff’s crime/incident report as multiple hearsay without an applicable exception.

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until two hours after the event ended, and the absence of admissible evidence connecting the assailant with the event, the Hells Angels, or any other confrontation, conflict or dispute with any other patron that day. It ruled plaintiffs did not present admissible evidence of a high degree of foreseeability of third party criminal conduct, that is, demonstrate defendants had the requisite particularized information, meaning actual, not constructive, notice of past similar incidents that had occurred on the property. Because the loss of consortium claim was predicated on defendants’ negligence, the court also adjudicated that cause of action in defendants’ favor.

Plaintiffs appeal from the ensuing judgment.

DISCUSSION

I. Spoilation Argument

We begin with plaintiffs’ argument that sanctions are warranted for what they assert is defendants’ spoilation of video evidence. They argue the conduct—defendants’ failure to preserve evidence in pending or reasonably foreseeable litigation—is a misuse of the discovery process subject to a broad range of punishment. Plaintiffs say Crilley should have known a civil claim was foreseeable, but went from telling police about the video to relating the next day that it had been destroyed. Plaintiffs argue they are “entitled, at the very least, to a presumption that the destroyed evidence would be unfavorable to [defendants]” as well as admission of any evidence excluded by the trial court because the direct evidence was destroyed, including photos of Garcia that his wife submitted to show his approximate height.

Defendants do not address the argument. We reject it for several reasons. First, plaintiffs did not sufficiently preserve it for appeal. They say they raised the issue below, but that the trial court did not address it. We

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are of the view that the court did not do so because plaintiffs did not request that it make a finding of willful destruction of evidence (Evid. Code, § 413) for purposes of applying a negative evidentiary presumption or issue discovery sanctions for spoilation. There is no indication in the record that plaintiffs made a discovery-related sanctions motion based on the video’s disappearance. At the summary judgment hearing, plaintiffs’ counsel asserted that based on the video’s disappearance, “under various Evidence Codes, section 600, and circumstantial evidence, and so forth, all the instructions that go to a jury, we’re to allow to make [sic] reasonable inferences that that video showed negative issues. Negative issues meaning

hurts their arguments.”7 Plaintiffs’ counsel stated plaintiffs “could have proved [people were still at the event] if we had the video of when people left the engagement. So we’re allowed to infer that, and we’d like to argue it to a jury, inferring that these people were still there.” Counsel did not argue defendants’ conduct with respect to the video was discovery abuse or sanctionable.

Second, it is not appropriate that plaintiffs ask this court to reach negative presumptions in the first instance. The weight of any inferences to be drawn under the Evidence Code sections related to evidence spoilation are matters for the trial court and are only of concern to the reviewing court when there is no substantial evidence to support a judgment. (Moore v. Spremo (1945) 72 Cal.App.2d 324, 328-329.) Finally, plaintiffs have not

7 Presumably, this was a reference to Evidence Code sections 412 and 413. Evidence Code section 412 provides that “[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” Evidence Code section 413 allows the trier of fact to consider a party’s “willful suppression of evidence” in determining what inferences to draw from the evidence in the case against a party.

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attempted to establish prejudice stemming from the court’s failure to address the requested presumptions or inferences. (See Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 364 [party claiming erroneous application of Evidence Code section 412 has the burden of showing prejudice, that is a “reasonable probability, i.e., a reasonable chance, it would have obtained a more favorable result absent the error”].)

II. Evidentiary Objections Plaintiffs challenge several of the trial court’s rulings on their evidentiary objections, specifically the court’s decision to exclude portions of Cook’s declaration, the contents of the 2010 Annual Report, the entirety of Veronica Garcia’s declaration, and portions of the sheriff’s crime/incident report from the day in question. Plaintiffs generally argue the evidence was relevant and admissible, and the court abused its discretion in excluding it.

Though we independently review the court’s decision on a summary judgment, the weight of authority holds that appellate courts review underlying evidentiary rulings for abuse of discretion. (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657; see also Doe v. SoftwareONE Inc. (2022) 85 Cal.App.5th 98, 103 [citing cases].) It is plaintiffs’ burden to establish such an abuse of discretion (Doe v. SoftwareONE Inc., at p. 103), that is, that no judge could reasonably have made the same decision (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1199); the decision is “ ‘so irrational or arbitrary that no reasonable person could agree with it’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773); or the decision exceeded the bounds of reason. (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) We address

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these issues preliminarily because plaintiffs must meet their opposing summary judgment burden with admissible evidence. (Code Civ. Proc., § 437c, subd. (c); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 [“Only admissible evidence is liberally construed in deciding whether there is a triable issue”].) A. Cook’s Testimony Summarizing Cook’s qualifications, plaintiffs contend the background information he related on the Hells Angels organization and its propensity for criminal acts and violence is the sort of evidence “long admitted” in California, and was therefore relevant and admissible. They rely on cases such as People v. Hill (2011) 191 Cal.App.4th 1104, involving admission of gang expert testimony on issues of gang rivalries, the gang-related nature of a shooting, and the behavior/thought processes of gang members (id. at pp. 1121-1126), and People v. Iraheta (2017) 14 Cal.App.5th 1228, which involved gang expert testimony about the “general attributes of [a particular criminal street] gang,” which the court held to be “background facts” based on the expert’s training, education and experience, and not testimonial hearsay. (Id. at p. 1247.) Plaintiffs argue: “By analogy to the ‘gang’ witnesses at issue in Hill, Iraheta, and the numerous other cases cited in those authorities, Cook’s testimony about the nature and characteristics of a gang he monitored and investigated for many years . . . was relevant and admissible.” In a footnote touching on the court’s evidentiary ruling, plaintiffs argue Cook’s declaration “falls squarely within the parameters of permissible testimony regarding criminal gangs.”

As plaintiffs acknowledge in connection with another argument,

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“ ‘[e]vidence is relevant if it has a “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” ’ ” (People v. Stayner (2026) 19 Cal.5th 395, 496, italics added.) “ ‘ “The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court’s exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner.” ’ ” (Ibid.)

Plaintiffs make no effort in their opening brief to identify pertinent facts, issues or elements of their causes of action for negligence, premises liability and loss of consortium that Cook’s statements about the Hells Angels’ history or prior crimes would tend to prove. We will not make these arguments for them. (Inyo Citizens for Better Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 14.) This deficiency and the undeveloped contention is fatal to the claim, as the arguments do not meet the high bar to establish the court’s evidentiary ruling was arbitrary, capricious or patently absurd.

Even considering Cook’s recitation of prior crimes involving Hells Angels or accepting his statement that they generally are involved in criminal activity, our conclusion would not change. As we discuss more fully below, such evidence of generalized criminal activity or even past assaults committed by Hells Angels members does not show the existence of “prior similar incidents on the premises or other sufficiently serious ‘indications of a reasonably foreseeable risk of violent criminal assaults’ ” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1222 (Castaneda) quoting Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 238 (Delgado)) so as to establish the high level of foreseeability necessary to impose the heavily burdensome duties to hire additional security or exclude the Hells Angels from the bar. And even if we concluded the evidence gives rise to defendants’ duty to take other proposed

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measures such as warning patrons or segregating them from the event, the evidence here, even viewed in the light most favorable to plaintiffs, does not show the absence of those measures was likely a substantial factor in producing the assault on Garcia, which happened in a matter of seconds and occurred at least 45 minutes or more after most of the Hells Angels group had left the bar. B. 2010 California Department of Justice Report Plaintiffs contend the court’s decision to not take judicial notice of the truth of facts within the 2010 Annual Report was an “undue restriction on judicial notice” and an abuse of discretion. They point out the report’s summary of the Hells Angels organization “is only four paragraphs” and characterize the information as “high-level facts [that are] not subject to reasonable dispute” as they are the “basis of years of law investigative work and prosecutions.” The sole authority they rely upon is Gould v. Maryland Sound Indus., Inc. (1995) 31 Cal.App.4th 1137, which states generally that judicial notice will cover “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Id. at p. 1145.)

The referenced portion of the 2010 Annual Report summarizes the origins of the Hells Angels gang and its name, identifies its headquarters and touches on its worldwide expansion, explains its logos and insignia, and states that while they are known for involvement in toy runs, “they have also been associated with criminal activity.” The report explains how the group makes efforts to avoid law enforcement, and explains that support clubs are used for drug production and cultivation. It describes the gang’s rivalries with other gangs. Setting aside that plaintiffs fail to detail how this report

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was prepared, by whom, and how the authors are “learned in the subject matter,” they again do not explain in any meaningful way how these matters have a tendency to prove any disputed fact issue in this civil case. On that basis alone, we may reject the contentions.

But even if the content of the 2010 Annual Report as to the Hells Angels were properly considered, it would not change our ultimate conclusion—namely that plaintiffs cannot establish a triable material fact issue on the issue of duty and the requisite degree of foreseeability necessary to impose the suggested duties of care against the sort of violent assault that occurred here. The report mentions only generalized “criminal activity,” detailing drug production and cultivation as well as rivalries with other gangs. This general information would not give a bar owner a reason to foresee that members of the Hells Angels organization would engage in

violent criminal assaults of its regular patrons or invitees,8 such that he or she would owe the sort of security-related duties urged by plaintiffs. C. Law Enforcement Summaries Plaintiffs include a category entitled “Summary,” and state: “Aside from having a member of the criminal organization turn on the organization, summaries and testimony from law enforcement officers who have spent their careers investigating these organizations are the best way to tell a court or jury about the organizations. Yet the trial court excluded both, leaving [their] hands literally tied with respect to such critical (and not disputable) evidence.” Plaintiffs then ask us to “reverse the trial court’s ruling in this regard.” The undeveloped contention, without identifying the witnesses, specific matters, or basis on which the court excluded the material, does not

8 This conclusion would perhaps be different if the evidence showed defendants knew a rival gang was planning to come to the event. There is no such evidence in the record.

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persuade us that the court abused its discretion in any evidentiary ruling. (Mackey v. Board of Trustees of California State University, supra, 31 Cal.App.5th at p. 657 [party challenging evidentiary ruling bears the burden of establishing the court’s ruling exceeded the bounds of reason].) D. Evidence of Garcia’s Medical Diagnosis and Prognosis from Veronica Garcia Plaintiffs submitted in opposition to summary judgment the declaration of Garcia’s wife, in which she described the incident, Garcia’s injuries, the length of his hospital stay, and stated he continued to suffer effects and results of his injuries with little progress to his condition. She stated that Garcia had suffered a “moderate [traumatic brain injury],” and described his resulting symptoms and complications. She set out Garcia’s height and weight, and demonstrated such by attaching photographs of him before and after the incident.

The court sustained defendants’ objections to the declaration “to the extent” it addressed “Garcia’s medical diagnosis and/or prognosis” on grounds it was irrelevant and constituted an improper expert opinion. Plaintiffs argue the court’s ruling was an abuse of discretion, since the nature and likelihood of injury are factors to consider in ascertaining a duty of care under Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland). Plaintiffs maintain that as his “wife of 18 years, [Veronica Garcia] would know such basic things as the nature and extent of his traumatic brain injury and the number of days he spent in the hospital.” They argue the medical evidence bears directly on the Rowland factors and is “by definition relevant.”

As indicated, the court’s order only excluded Veronica Garcia’s declaration to the extent it addressed Garcia’s medical diagnosis and prognosis; it did not exclude any other topic. But defendants did not dispute

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the nature and extent of Garcia’s injuries. Because the court excluded the medical testimony as irrelevant, and relevant evidence must have a tendency to prove a disputed fact of consequence to the action, plaintiffs have not shown the court abused its discretion by its evidentiary ruling. E. Sheriff’s Crime/Incident Report Defendants objected to portions of the sheriff’s crime/incident report on hearsay grounds. Acknowledging a police report is admissible under Evidence Code section 1280 “ ‘if it is based upon the observations of a public employee who had a duty to observe facts and report and record them correctly,’ ” the trial court sustained all of the objections “to the extent the Incident Report contains multiple layers of hearsay to which an exception does not apply.” It ruled “opinions and conclusions of the officer” as well as eyewitness statements were not admissible.

Plaintiffs contend the court erred by this ruling. Specifically, they argue Deputy Colbern’s summary of his conversations with Crilley are not hearsay, as Crilley is a party and the deputy’s summary is admissible under Evidence Code section 1280. Plaintiffs also contend under a separate subheading that the court erred by excluding the report in its “entirety” (italics omitted), and that the report is admissible to the extent it reports that the assault occurred at 4:42 p.m. They argued the time was reported “via a basic automated function” and has sufficient independent evidence to trust its reliability.

We reject the contentions, in part because plaintiffs mischaracterize the court’s evidentiary ruling. Despite the court’s remark at the summary judgment hearing that the report was “not evidence,” the court’s ultimate ruling did not exclude the sheriff’s crime/incident report in its entirety; it did so only for those portions that contained multiple levels of hearsay without

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exception.9 And defendants did not object to, nor did the court rule inadmissible, the “General Case Information” portion of the report on its first page reflecting the timing of the incident. Further, the court overruled the defendants’ objection to the call log showing the time of the police call on March 4, 2023, so that evidence is properly considered. Because the timing of the police call is in the record, plaintiffs cannot demonstrate prejudice, even assuming the correctness of their contentions. F. Photographs of Garcia Plaintiffs submitted photographs of Garcia, one of which shows him in a wheelchair. The trial court sustained defendants’ relevance objection to the photos. Plaintiffs contend the ruling was error, claiming defendants took the position that Garcia initiated the shoving match with the assailant, but one can draw a reasonable inference that he would not have done so with someone so much larger than him.

We conclude plaintiffs cannot establish prejudice from the exclusion of the photos. As indicated above, the trial court did not exclude the portion of Victoria Garcia’s declaration as to Garcia’s five-foot four-inch height and 160-

9 “ ‘ “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” [Citation.] In other words, “a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true.” ’ ” (Huntsman-West Foundation v. Smith (2024) 104 Cal.App.5th 1117, 1129, quoting Doe v. SoftwareONE Inc, supra, 85 Cal.App.5th at p. 108; see Evid. Code, § 1200, subd. (a).) “[H]earsay is generally inadmissible unless it falls under a specific exception that justifies its admission. [Citation.] Documents like reports and records are generally hearsay if they are offered for their truth, and indeed, may contain further instances of hearsay, each of which is inadmissible unless also covered by an exception.” (Walker v. Superior Court (2021) 12 Cal.5th 177, 192.)

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pound weight. Because the photographs were duplicative for this purpose, we reject plaintiffs’ claim on this ground. III. The Court Properly Granted Summary Judgment in Defendants’ Favor A. Summary Judgment Principles and Standard of Review “A trial court properly grants a motion for summary judgment only if no triable issue exists as to any material fact and the defendant is entitled to judgment as a matter of law. [Citations.] ‘The moving party bears the burden of showing the court that the plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case . . . .” ’ ” (Bailey v. San Francisco Dist. Attorney’s Office, supra, 16 Cal.5th at p. 620.) Defendants “ ‘must demonstrate that under no hypothesis is there a material factual issue requiring trial.’ ” (Dailey v. City of San Diego (2013) 223 Cal.App.4th 237, 249, quoting Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289-290; Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 850.) If defendants do not meet their burden on either point, the court must deny the motion. (Dailey, at p. 249.)

Once defendants satisfy their initial burden, “the burden shifts to [plaintiffs] . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiffs must “set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Ibid.) They may not raise a triable issue of fact by relying on evidence that is inadmissible at trial. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543; Sargenti v. City of Long Beach (2026) 120 Cal.App.5th 702, 714 [relying on Perry: the summary judgment statute “ ‘has always required the evidence relied on in supporting or opposing papers to be admissible’ ”].)

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“On appeal, we examine the record de novo, viewing the evidence in the light most favorable to the plaintiff[s] as the losing party and resolving any evidentiary doubts or ambiguities in [their] favor.” (Bailey v. San Francisco Dist. Attorney’s Office, supra, 16 Cal.5th at p. 620; California Medical Assn. v. Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1087; Jackson v. Lara (2024) 100 Cal.App.5th 337, 343.) We consider all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 28.) “ ‘ “In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court’s determination of a motion for summary judgment.” ’ ” (Jackson, at p. 343.) “We will affirm summary judgment ‘if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons.’ ” (Clarke v. Yu (2026) 119 Cal.App.5th 199, 205-206.) However, “any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.” (Reid v. Google, Inc., supra, 50 Cal.4th at p. 535.) B. Duty of Care 1. Legal Principles Applicable to a Business Proprietors’ Duty to Provide Security for Patrons “To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that [the defendant] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ ” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.) The general rule of duty in California is that every person has a duty to act with ordinary care or skill in the management of his property. (Civ. Code,

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§ 1714, subd. (a); Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1016; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) But the rule of Civil Code section 1714, while broad, “has limits.” (Kuciemba, at p. 1016; see Brown, at p. 213 [duty of care “is not universal [and] not every defendant owes every plaintiff a duty of care”].) Where, as here, a plaintiff’s injuries are inflicted by a third party, not the defendant, and the claim is that the defendant was negligent by failing to protect the plaintiff from the harm, the “starting point for [a court’s duty analysis is] instead the alternate rule that generally ‘ “one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.” ’ ” (Kuciemba, at p. 1017, see Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619; Brown, at p. 214; Delgado, supra, 36 Cal.4th at p. 235 [“as a general matter, there is no duty to protect others from the conduct of third parties”].) Under these circumstances, “the law does not impose a duty to control, warn, or protect unless there is a special relationship between the parties that ‘ “gives rise to a duty to act.” ’ ” (Kuciemba, at p. 1017; Brown, at pp. 211, 215 [defendant’s special relationship may be either with the victim or the person who created the harm].)

Even where a special relationship gives rise to an affirmative duty to protect or warn, policy considerations may justify excusing or limiting that duty. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 218; see Rowland, supra, 69 Cal.2d 108.) “ ‘This public policy analysis is “forward-looking” and to be conducted on a general, categorical basis . . . .’ ” (A.L. v. Harbor Developmental Disabilities Foundation (2024) 102 Cal.App.5th 477, 488; see Kuciemba v. Victory Woodworks, Inc., supra, 14 Cal.5th at p. 1022; Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal.App.5th 843, 857.) The familiar factors to be balanced are “ ‘the foreseeability of harm to the

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plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Brown, at p. 217; Rowland, supra, 69 Cal.2d at pp. 112-113.) Thus, “even when two parties may be in a special relationship, the unforeseeability of the kind of harm suffered by the plaintiff or other policy factors may counsel against establishing an affirmative duty for one party to protect the other.” (Brown, at p. 219.)

“[T]he existence of a legal duty is a question of law for the court to determine . . . .” (Delgado, supra, 36 Cal.4th at p. 237.) In undertaking this analysis, “foreseeability is a ‘crucial factor’ ” and “ ‘[f]orseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.’ ” (Ibid.)

Foreseeability was the focus of the analysis in Delgado, supra, 36 Cal.4th 224, in which the California Supreme Court determined whether the duty of a proprietor who has a special relationship with its patrons or invitees properly includes a duty to provide security guards or take other security measures to protect against third party criminal conduct. (Id. at p. 236.) Delgado involved a patron who was assaulted by a group in a bar’s parking lot. The plaintiff’s wife noticed staring between her husband and the assailants and notified a guard, and the guard asked the couple to leave, but did not escort them to their car. (Id. at p. 231.) The bar owner employed two security guards who were instructed to, among other things, patrol the parking lot, check identifications, and call 911 in case of an altercation or

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attack. (Id. at p. 230.) The patron and his wife sued the bar, including on a premises liability theory. (Id. at p. 232.)

Delgado reviewed a series of cases discussing foreseeability of third party criminal conduct to decide the scope of the bar owner’s duty to provide security against such conduct. Under those cases, the proper approach in relation to a business proprietor’s duty to hire security guards or implement other security measures to protect from crime was to require a “high degree” or “heightened sense” of foreseeability. (Delgado, supra, 36 Cal.4th at pp. 238, 240 & fns. 16-20, discussing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 669 (Ann M.), disapproved on other grounds by Reid v. Google, Inc., supra, 50 Cal.4th at p. 527, fn. 5, Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1191, and Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1149-1150.)

Delgado further acknowledged that the requisite degree of foreseeability “rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises” (Delgado, supra, 36 Cal.4th at p. 238) or some “other indications of a reasonably foreseeable risk of violent criminal assaults in that location . . . .” (Delgado, at p. 239.) The court explained by reference to Ann M., supra, 6 Cal.4th at page 679, footnote 7: “ ‘It is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability.’ ” (Delgado, at p. 238, fn 16; see also p. 239, fn. 19 [“even in the absence of evidence of prior similar crimes on the defendant’s premises, other circumstances . . . might provide the requisite heightened degree of foreseeability”].)

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Delgado recognized that in Sharon P. it had addressed a plaintiff’s arguments urging that defendants owed a duty to undertake other, “assertedly less burdensome security measures” (i.e., ensuring a garage was brightly lit and clean, activating and installing security cameras, requiring existing personnel to walk the garage periodically) and questioned whether such measures were in reality significantly less burdensome than hiring guards. (Delgado, supra, 36 Cal.4th at p. 239, discussing Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at pp. 1196-1197.) In that instance, the court again applied the heightened foreseeability test set forth above to find the evidence of prior crimes “insufficiently similar to the violent assault upon the plaintiff to ‘establish a high degree of foreseeability that would justify imposition of . . . an obligation’ on the defendant’s part ‘to provide security guards in their garage.’ ” (Delgado, at pp. 239-240 & fn. 19.) Further, absent prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in their location, the defendants were not “ ‘required to [take other measures] to secure the area against such crime.’ ” (Delgado, at p. 240, quoting Sharon P., at p. 1199.)

Delgado reviewed yet another case applying the high foreseeability standard in rejecting an argument that defendants should have installed a stronger barrier to protect against a car intentionally driven though a chainlink fence to kill children. (Delgado, supra, 36 Cal.4th at p. 240, fn. 20, discussing Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1151 [“Without prior similar criminal acts, or even any indication of prior criminal acts or intrusions of any type in the surrounding businesses, defendants here could not have been expected to create a fortress to protect the children”].) There, the defendant owed no duty to provide a stronger

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fence to protect against the crime that ultimately occurred. (Delgado, at p. 240, fn. 20.)

Delgado went on to explain that a business proprietor may have liability due to its special relationship to “undertake relatively simple measures” such as providing assistance for customers needing medical attention, to “warn patrons of known dangers,” or to take “other reasonable and appropriate measures to protect patrons or invitees from imminent or ‘ongoing’ criminal conduct” including by calling 911 or using escorts. (Delgado, supra, 36 Cal.4th at p. 241.) A bar proprietor in particular, because they serve intoxicating drinks to customers on the premises, “must ‘exercis[e] reasonable care to protect his patrons from injury at the hands of fellow guests’ [citation], and that such a duty ‘ “arises . . . when one or more of the following circumstances exists: (1) A tavern keeper allowed a person on the premises who has a known propensity for fighting; (2) the tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others; (3) the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others; (4) the tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper failed to provide a staff adequate to police the premises;[ ] and (6) the tavern keeper

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tolerated disorderly conditions [citations].” ’ ” (Delgado, quoting Saatzer v.

Smith (1981) 122 Cal.App.3d 512, 518.)10 Additionally, under very narrow circumstances, a bar proprietor may have a duty or protect its patrons from other aggressive patrons, as where a bouncer “must have been apprised of the potential danger to plaintiff [a female bar patron] of assault” by another patron who the bouncer observed had been unsuccessfully propositioning her in the bar. (Delgado, at pp. 241- 242, discussing Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.) Delgado observed that though the bouncer in Taylor had warned the plaintiff not to go outside because the other patron (who he referred to as a “goofball”) was “out there,” he did not escort her to her car. (Delgado, at p. 242; Taylor, at pp. 123-124.) In that case, it was a question for the jury whether the bouncer’s mere admonition satisfied the defendant’s special relationship- based duty to the plaintiff. (Delgado, at p. 242; Taylor, at p. 124.)

In applying these principles to its circumstances, the Delgado court held the defendant owed a duty to the plaintiff under the special relationship doctrine. (Delgado, supra, 36 Cal.4th at p. 242.) It pointed out that heightened foreseeability was not always required when a plaintiff seeks to impose special-relationship liability on a proprietor related to third party crimes. (Delgado, at pp. 242-243.) Rather, courts must use a “sliding-scale balancing formula” based on the nature of the burden the plaintiff seeks to impose: “imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of

10 The Saatzer court, while recognizing a bar proprietor’s duty to exercise reasonable care, nevertheless said: “However, the proprietor is not an insurer of the safety of his patrons; his obligation is limited to the exercise of reasonable care and he is liable only for negligence in receiving or harboring guests of known violent or vicious propensities.” (Saatzer v. Smith, supra, 122 Cal.App.3d at p. 518, italics added.)

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foreseeability.” (Id. at p. 243, see also id. at p. 243, fn. 24.) It also explained that a showing of prior similar criminal conduct or other indications of a reasonably foreseeable risk of violent criminal assaults did not mean a showing of “prior nearly identical criminal incidents.” (Id. at p. 245.) While the Delgado court agreed the plaintiff had produced insufficient evidence of heightened foreseeability that would have imposed on the defendant a duty to provide “any guard, or additional guards, to protect against third party assaults” (ibid., italics added), it held the record contained evidence that the defendant’s guard was aware of facts that led him to conclude a few minutes before the assault that a fight was likely to occur between the plaintiff and the other men absent some intervention on his part. (Ibid.) In fact, the evidence was that the guard had “formed the opinion that in order to avoid an altercation it was necessary to separate plaintiff from [the other men] by removing plaintiff from the bar while simultaneously leaving [the other men] inside, and that in order to put that plan into action [the guard] approached plaintiff and directed him to depart from the bar.” (Ibid.) Thus, under the circumstances there, it was “foreseeable that an assault would occur absent separation of [the men remaining in the bar] from plaintiff.” (Id. at pp. 245- 246.) The other Rowland factors supported a conclusion that the bar owner defendant “had a special-relationship-based duty to respond to the unfolding events by taking reasonable, relatively simple, and minimally burdensome steps in order to address the imminent danger that [the guard] perceived, and, specifically, in order to accomplish the separation that he had determined was necessary.” (Delgado, at p. 246.)

Delgado concluded that because the defendant had “actual notice of an impending assault involving [the assailant] and plaintiff, its special- relationship-based duty included an obligation to take reasonable, relatively

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simple, and minimally burdensome steps to attempt to avert that danger.” (Delgado, supra, 36 Cal.4th at p. 250.) It reversed and remanded the matter to the Court of Appeal for further proceedings. (Ibid.)

Using these principles, the California Supreme Court in Castaneda, supra, 41 Cal.4th 1205 set out a duty analysis framework with respect to third party crime—there, the shooting of a mobile home park resident and bystander during a gang confrontation in the park. (Id. at p. 1209.) The mobile home across the street from the plaintiff was occupied by an individual, Paul Levario, who was a gang member, and the shot was fired by a fellow gang member visiting Levario. (Id. at p. 1210.) In assessing whether the defendant owed a duty, Castaneda explained that the court first “identif[ies] the specific action or actions the plaintiff claims the defendant had a duty to undertake [to prevent the harm]. ‘Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.’ [Citation.] . . . 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

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court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.” (Id. at p. 1214.)

Castaneda involved the plaintiff’s claim that the mobile home park owner had breached a duty not to rent to known gang members or to evict them when they harassed other tenants. (Castaneda, supra, 41 Cal.4th at pp. 1209, 1212.) The Court of Appeal reversed a nonsuit, holding evidence that the owner was aware he was renting spaces to gang members, and there had been a variety of gang-related criminal activity and other crimes occurring on or near the premises, created a duty to undertake additional security measures in the park to protect residents from potential violence occurring on the property. (Id. at pp. 1212-1213.)

Castaneda reversed, holding the grant of nonsuit proper. (Castaneda, supra, 41 Cal.4th at p. 1210.) It held the plaintiff’s first asserted duty—to refuse to rent housing to street gang members—“cannot be imposed except under circumstances where gang violence is extraordinarily foreseeable.” (Id. at p. 1215; see also id. at p. 1216.) An underlying rationale was that because a landlord would have to guess at who might be a gang member, “the result in many cases would be arbitrary discrimination on the basis of race, ethnicity, family composition, dress and appearance, or reputation,” all of which “are, in at least some circumstances, illegal and against public policy and could themselves subject the landlord to liability.” (Ibid.) The court identified one such law as the Unruh Civil Rights Act, which “ ‘does not permit a business enterprise to exclude an entire class of individuals on the basis of a generalized prediction that the class “as a whole” is more likely to commit misconduct than some other class of the public.’ ” (Id. at pp. 1216- 1217, quoting Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 739 and Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 741 [“mere suspicion

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based on past conduct and alleged reputed activities” did not justify expulsion from a business establishment].)

The second asserted duty—to evict gang member tenants—could exist “where violence involving existing gang member tenants is highly foreseeable,” but the court held the facts presented by the plaintiff there did “not create that level of foreseeability.” (Castaneda, supra, 41 Cal.4th at p. 1215.) In reaching that conclusion, the court reasoned that such an undertaking “cannot be considered a minimal burden.” (Id. at p. 1219.) In part, it observed that undertaking eviction of a hostile tenant, especially one involved in a violent street gang, could subject the landlord or property manager to retaliatory harassment or violence. (Ibid.) Thus, courts had recognized such a tort duty to evict a vicious or dangerous tenant only in cases where a tenant’s behavior made violence toward neighbors or others on the premises highly foreseeable, as where a neighbor shoved, blocked or bumped another tenant on several prior occasions before pushing her down the stairs. (Ibid.) In Castaneda, the court, reviewing the evidence in the light most favorable to the plaintiffs, concluded that the evidence of prior crimes or bad acts did not demonstrate that a shoot-out between two rival gangs was highly foreseeable, particularly where “[n]o one had reported that the Levarios or their guests had used, displayed or possessed a gun at the mobile home park.” (Id. at p. 1221.) “Thus while [gang] graffiti might have suggested members of that group frequented the park, [the owner] had no reason to expect a confrontation, involving the Levarios, between the two rival gangs.” (Id. at pp. 1221-1222.)

The court in Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654 followed Castaneda’s framework in a case involving a 2012 assault of a musician in a parking lot several feet from a bar where he had played.

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(Williams, at pp. 658-659, 667, citing Castaneda, supra, 41 Cal.4th at p. 1214.) The plaintiff sought to present crime incident reports showing prior assaults had occurred in 2011 at the shopping center. (Id. at p. 660.) The trial court assumed such assaults had occurred but nevertheless granted summary judgment on grounds the center had no notice of the incidents. (Id. at pp. 660, 661.) In affirming, the Williams court explained that while the shopping center owner was “generally aware of the possibility of fights erupting at or near the bar” “a general knowledge of the possibility of violent criminal conduct is not in itself enough to create a duty under California law . . . .” (Id. at p. 668.)

Williams treated the plaintiff’s claims as asking for increased security measures for the parking area outside the bar, consistent with his complaint’s allegations. (Williams v. Fremont Corners, Inc., supra, 37 Cal.App.5th at p. 669.) Doing so, it held he could not establish the requisite heightened foreseeability under Delgado and other cases for imposing such proactive preventative measures. (Id. at pp. 670-671.) Measuring foreseeability by the general character of the event or harm, and even drawing all inferences in the plaintiff’s favor, the Williams court held that the prior crimes known to the shopping center—a burglary, broken window to the next door location, and an assault—did not meet the heightened standard. (Id. at p. 671.) “[A]t most [the shopping center] was on notice of the possibility of fights, given [the owner’s] acknowledgement that ‘more people’ and the bar’s changing character could cause problems. Knowing there is a general potential for rowdy or troublesome conduct by bar patrons, however, does not make the category of aggressive parking lot assaults reasonably foreseeable . . . .” (Id. at pp. 671-672.) The court concluded that the plaintiff’s proposed assertedly “minimal” measures (reviewing video

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surveillance videos, talking to tenants about or requiring them to report criminal activity) had “even more of an attenuated relationship to preventing the type of harm that [plaintiff] suffered.” (Id. at pp. 672-673.) Because foreseeability was the crucial consideration in evaluating legal duty, it was unnecessary for the court to review the remaining Rowland factors. (Id. at p.

673.)11 2. Plaintiffs’ Contentions We turn to plaintiffs’ contentions. Relying heavily on Delgado, supra, 36 Cal.4th 224 and touching on Williams v. Fremont Corners, Inc., supra, 37 Cal.App.5th 654, they contend defendants as bar owners owed Garcia a duty of reasonable care as a matter of law. They highlight Delgado’s language that bar proprietors have a duty to warn patrons of “known dangers” or, where a warning is insufficient, to take other reasonable and appropriate measures to protect patrons from “imminent or ‘ongoing’ criminal conduct.” (Delgado, at p. 241.) They argue they have shown defendants owed a “ ‘special relationship’ of protection” by evidence that they welcomed 100 to 150 “gang members in the Hells Angels” and allowed them to mingle with other patrons. Plaintiffs say defendants fit within one of the scenarios mentioned by Delgado because they “failed to provide a staff adequate to police the premises.” They argue: “If ever there was a ‘limited circumstance’ with a need for extra security, that need arises when a bar owner invites 100- 150 gang members with a ‘known propensity for fighting’ into a drinking establishment for daytime drinking and then lets them all interact with

11 Under the forgoing authorities, the evidence highlighted by the concurrence (conc. opn., post, at p. 1) is insufficient to support any duty of care as it merely shows a potential for violence or generalized criminal activity.

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regular patrons.” All of this, plaintiffs argue, shows the special relationship doctrine is met here.

Plaintiffs next proceed to apply the Rowland factors to determine if defendants should be protected from liability. They argue there is no need for balancing because each factor favors imposing a duty of care on defendants, and, relying on some California Supreme Court authority outside of the third party crime context (e.g., Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at p. 772), assert that courts should create exceptions to a general duty rule only where clearly supported by public policy.

Specifically as to foreseeability, plaintiffs argue that “[a] higher duty of care is implicated where the risk of violent conduct is heightened, such as here.” They say the inquiry generally focuses on whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that negligence liability is appropriate. According to plaintiffs, defendants’ failure to provide adequate security or warn other patrons about an event mixing drinking alcohol with up to 150 members of an outlaw motorcycle gang makes foreseeability “obvious.”

3. Analysis Guided by the cases discussed above, we reject plaintiffs’ argument that defendants owed them a duty as a matter of law. While defendants had a special relationship with Garcia by virtue of his patronage at their bar (Hassaine v. Club Demonstration Services, Inc., supra, 77 Cal.App.5th at p. 852 [special relationship exists between businesses and their invitees]), the existence of that relationship does not end the inquiry. (Id. at p. 853.) Here, the unforeseeability of criminal assaults against patrons—the type of harm suffered by Garcia—negates any affirmative duty on defendants’ part to take the sort of security measures plaintiffs propose. (Brown v. USA Taekwondo,

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supra, 11 Cal.5th at p. 222 [“even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases”].)

Delgado, Castaneda and Williams foreclose plaintiffs’ theories of foreseeability. In these situations, “courts have been exceedingly wary in imposing a duty to protect against unforeseen criminal conduct given the heavy burden of preventative measures.” (T.L. v. City Ambulance of Eureka, Inc. (2022) 83 Cal.App.5th 864, 890.) Delgado makes clear that hiring security guards (or additional security) is a significant burden. Thus, a high degree of foreseeability is required. But none of plaintiffs’ evidence established prior similar instances of assaults occurring on defendants’ premises. (Delgado, supra, 36 Cal.4th at p. 236.) There are no other indications of a “reasonably foreseeable risk of violent or criminal assaults in that location.” (Id. at p. 239, italics added.) To the extent plaintiffs seek to meet this requirement with evidence that the Hells Angels generally engage in criminal activities and its members had committed violent assaults in the past elsewhere, we have already held the court properly excluded both Cook’s testimony as well as the information contained in the 2010 Annual Report. While defendants did not object to Deputy Colburn’s deposition testimony that police set up a detail to monitor the Hells Angels event, that evidence at best shows defendants were “generally aware of the possibility of fights erupting at . . . the bar.” (Williams v. Fremont Corners, supra, 37 Cal.App.5th at p. 668.) Such “general knowledge of the possibility of violent criminal conduct is not in itself enough to create a duty . . . .” (Ibid.; see also Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 503 [“for foreseeability in the context of a duty to protect, ‘[m]ore than a mere

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possibility of occurrence is required since, with hindsight, everything is foreseeable’ ”]; C.I. v. San Bernardino City Unified School District (2022) 82 Cal.App.5th 974, 985 [same; quoting Colonial Van].) In short, even viewed most favorably to plaintiffs, the evidence does not establish the likelihood of violent assaults at defendants’ location to impose a duty to provide additional security. Curiously, plaintiffs suggest that Williams held that “prior attacks mandated a duty of care to hire guards to protect patrons.” If the quoted bracketed material was intended to summarize Williams, it misstates the holding, which was that the evidence of prior crimes on the premises did not rise to the high level of foreseeability needed to impose a duty of care on the shopping center owner to provide guards to protect patrons. (Williams, at p. 671.) Plaintiffs presented no evidence of prior attacks at defendants’ bar in any event.

As for plaintiffs’ claim that defendants had a duty to take other, assertedly less burdensome measures such as warning other patrons about the event, the facts here are unlike Delgado, supra, 36 Cal.4th 224, where the bouncer was aware of circumstances shortly before the assault that a fight was likely to occur between the plaintiff and other men absent some intervention on his part. (Delgado, at p. 245.) Here, the assault occurred so suddenly—within a matter of seconds—that considering such simpler measures, there was no opportunity to even take “minimally burdensome steps” to respond to “unfolding events.” (Compare Delgado, at p. 246.) The record lacks any indication of “known dangers” or “imminent or ongoing criminal conduct” (id. at p. 241) to impose a duty to warn. Based on the court’s evidentiary rulings, there is no admissible evidence to support an inference that defendants knew or should have known Hells Angels members have a “known propensity for fighting” or that such individuals posed such a

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danger to others, particularly where the evidence was that defendants held a previous Hells Angels event without incident.

Finally, plaintiffs’ argument about defendants’ duty to refuse the event is akin to the claim in Castaneda about the mobilehome park owner’s duty to refuse to rent to apparent gang members. As in Castaneda, it would be unreasonable to exclude an entire class of individuals (gang members generally, or the Hells Angels specifically) on the basis they would be more likely to commit misconduct. (Castaneda, supra, 41 Cal.4th at p. 1215.)

Because foreseeability is the crucial consideration in evaluating legal duty, as in Williams, we need not separately review the remaining Rowland factors. (Williams v. Fremont Corners, Inc., supra, 37 Cal.App.5th at p. 673.) Nor do we reach the question of causation.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

O’ROURKE, J.

I CONCUR:

MCCONNELL, P. J.

Do, J., Concurring.

I agree that the trial court properly granted summary judgment in favor of defendants AINW Corporation and Ronald Crilley and thus concur in the majority’s decision to affirm the judgment. But I would affirm on a different basis than the majority’s conclusion that defendants owed no duty of care to plaintiffs Veronica and Gilbert Garcia, as a matter of law. I would affirm on the basis there is no triable issue of fact as to causation.

I.

Whether defendants owed a duty of care to keep their bar patrons safe when hosting 100 to 150 members of the Hell’s Angels, a violent outlaw motorcycle gang, is a policy question driven by whether harm from the event was foreseeable. The San Diego County Sheriff’s Office recognized the risk of harm posed by the gang’s presence, as demonstrated by the fact that it independently posted a special detail of 10 deputies outside the bar during the event to ensure public safety. There was also evidence that defendants saw or should have seen the same risk of harm. When the defendants hosted the Hell’s Angels gang at the bar on a prior occasion, Crilley (the owner) alerted law enforcement that the gang would be there. In my view, the question of duty is a much closer call than the majority acknowledges and one that does not need to be resolved in this appeal.

II.

Even assuming defendants owed a duty of care that required them to take the precautionary measures plaintiffs have proposed, there is no evidence that any of these measures would have prevented the assault on Gilbert Garcia (Garcia) by the unknown assailant.

A plaintiff, injured on the defendant’s premises by the criminal assault of an unknown assailant, “must show that the defendant owed her a legal

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duty of care, the defendant breached that duty, and the breach was a proximate or legal cause of his injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772 (Saelzler).) “[T]o demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor’ in bringing about the injury.” (Id. at p. 778; accord Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) In this case, “to demonstrate that [defendants’] negligence constituted a substantial factor in bringing about the harm, [plaintiffs were] required to show ‘it was “more probable than not” that additional security precautions would have prevented the attack.’ ” (Sandoval v. Bank of Am. (2002) 94 Cal.App.4th 1378, 1386 (Sandoval), citing Saelzler, at p. 778 and Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 488 (Leslie G.).) In other words, the element of causation is satisfied if “ ‘but for’ ” the defendant’s negligence the assault would not have occurred. (Sandoval, at p. 1384.) “If the [assault] would have happened anyway, whether the defendant was negligent or not, then his negligence was not a cause in fact, and of course cannot be the legal or responsible cause.” (Ibid.)

Although causation is ordinarily a question of fact for the jury, it may be decided as a question of law where the facts as to causation are undisputed. (Ortega, supra, 26 Cal.4th at p. 1205.) To defeat summary judgment, “proof of causation cannot be based on mere speculation, conjecture and inferences.” (Saelzer, supra, 25 Cal.4th at p. 775.) Important here, “plaintiff must do more than simply criticize, through speculative testimony of supposed security ‘experts,’ the extent and worth of the defendant’s security measures, and instead must show the injury was actually caused by the failure to provide greater measures.” (Id. at p. 774.)

Plaintiffs identify four precautionary measures that defendants “could have taken to prevent the assault” on Garcia, including (1) declining to host the Hell’s Angels event; (2) segregating the event’s participants from other bar patrons; (3) having “more and/or better security” at the event; and/or (4) warning Garcia and other patrons of the event. Even if we were to assume defendants owed plaintiffs a duty of care and breached that duty by failing to take any or all these measures, the evidence before us does not establish it was more probable than not that any or a combination of the measures would have prevented the assault on Garcia.

The facts as to causation are undisputed. The Hell’s Angels event at the Kraken bar began at 10:00 a.m. on the day of the assault and was over at 3:00 p.m. The event attracted between 100 to 150 individuals. Crilley left the bar at about 3:00 p.m. and, according to him, “90 percent” of the Hell’s Angels group had already left by that time. The bartender observed that when Garcia arrived at the bar that afternoon there was “probably only like 15 people” in the bar. She could not say “there were any Hell’s Angels there at that point.” Garcia himself testified, when asked how crowded the bar was when he arrived, “The only thing I could tell you is when I walked in, I don’t think there was anybody there that I can remember, but I walked in.” Garcia drank a “Copper Crush” (a cocktail of vodka, Triple Sec, 7-up, orange juice, and cranberry juice) and half a beer, left the bar for some unspecified time, and later returned.

Sometime around 4:42 p.m.—more than an hour and a half after the Hell’s Angels event had ended—an altercation in the bar occurred between Garcia and an unknown male. Deputy Ken Colburn, who was one of the 10 deputies on assignment outside the bar, reviewed the surveillance video footage that captured some portion of the altercation. According to Colburn,

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the unknown male pushed Garcia hard enough that he stumbled backwards and hit his head on the concrete. As a result, Garcia suffered a traumatic brain injury. The entire altercation lasted approximately 10 seconds or less. One of the bar’s security guards immediately responded to the altercation but Garcia was injured and the assailant fled before the guard could intervene.

There is no evidence to explain what started the altercation. And crucially there is no evidence identifying Garcia’s assailant, showing that he was a member or affiliated with the Hell’s Angels gang, or demonstrating that he even entered the bar through the Hell’s Angels event. For these reasons, plaintiffs cannot satisfy California’s “rule” that they “must establish, by nonspeculative evidence, some actual casual link” between Garcia’s injury and the defendants’ failure to provide adequate security measures. (Saelzler, supra, 25 Cal.4th at p. 774; id. at pp. 772–776 [collecting cases establishing the rule].) Our high court’s decision in Saelzler compels this result.

In Saelzler, a FedEx employee was assaulted by three unidentified men on the premises of a large apartment complex while delivering a package to a resident in the midafternoon. (Saelzler, supra, 25 Cal.4th at p. 769.) The complex owners knew of frequent recurring criminal activity on the premises, committed by trespassers and tenants. (Id. at p. 770.) Despite establishing the “ ‘high foreseeability’ that violent crime would occur on the premises, and [the owners’] resultant duty to provide increased security,” the trial court granted summary judgment for the owners because the evidence did not demonstrate a causal link between their breach and plaintiff’s injuries. (Id. at p. 771.) Rejecting the Court of Appeal’s decision to reverse, the California Supreme Court concluded summary judgment was proper. (Id. at pp. 775– 781.)

The high court found the plaintiff’s inability to prove her assailants’

identity, under the circumstances of the case, prevented her from showing any of the defendants’ omissions caused her injuries. (Saelzler, supra, 25 Cal.4th at pp. 776, 781.) The court reasoned: “Plaintiff admits she cannot prove the identity or background of her assailants. They might have been unauthorized trespassers, but they also could have been tenants of defendants’ apartment complex, who were authorized and empowered to enter the locked security gates and remain on the premises. The primary reason for having functioning security gates and guards stationed at every entrance would be to exclude unauthorized persons and trespassers from entering. But plaintiff has not shown that her assailants were indeed unauthorized to enter. Given the substantial number of incidents and disturbances involving defendants’ own tenants, and defendants’ manager’s statement that a juvenile gang was ‘headquartered’ in one of the buildings, the assault on plaintiff could well have been made by tenants having authority to enter and remain on the premises. That being so, and despite the speculative opinion of plaintiff’s expert, she cannot show that defendants’ failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. [Citations.] Put another way, she is unable to prove it was ‘more probable than not’ that additional security precautions would have prevented the attack.” (Id. at p. 776.)

In short, because the plaintiff could not identify her assailants, she could not prove whether they were tenants authorized to be inside the apartment complex, in which case, they could not have been excluded by functioning perimeter security, and any increased security would not have prevented the assault. (Saelzler, supra, 25 Cal.4th at p. 776.) In reaching

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this conclusion, the high court rejected the opinion of plaintiff’s security expert that her injuries “could have been avoided” if the owners had hired roving daytime security guards to patrol the entire premises as speculative. (Id. at pp. 776–777.) “Because [the expert] was equally unaware of the assailants’ identities, his opinion regarding causation is simply too tenuous to create a triable issue whether the absence of security guards or functioning gates was a substantial factor in plaintiff’s assault.” (Id. at p. 781.)

Here too, Garcia admits he does not know the identity of his assailant.

He admits he has no information that would lead him to believe his assailant is a member of Hell’s Angels. But he offers three reasons why a reasonable jury could conclude the assailant was “a Hell’s Angels member or a person present due to the Hell’s Angels event.” Each amount to the type of pure speculation and conjecture that courts have rejected as insufficient to satisfy causation.

First, he argues the assault happened “just 90 minutes” after the event ended and “it is common for persons attending an event at a bar or restaurant to remain after for an additional drink or two.” Perhaps, but he points to no evidence, and I find none, that his assailant entered through or attended the event. Second, he argues the video “shows that the person next to the assailant, who appears to be pointing at and talking to the assailant, was wearing a Hell’s Angels jacket.” The video does not support this assertion. Deputy Colburn, who narrated the video, also did not describe the man wearing the Hell’s Angels jacket to be “pointing at and talking to the assailant.” (Italics added.)

Third and last, Garcia relies on Deputy Colburn’s testimony “that he believed the assailant was either a member or an associate of the Hell’s Angels, based ‘on his appearance [and] the fact that he was at the bar at the

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time.’ ” This is not a correct summary of Deputy Colburn’s testimony. Deputy Colburn made clear he “couldn’t place [the assailant] as a member” of the Hell’s Angels. Although he surmised the assailant was “possibly just an associate” of the gang based only on his appearance, Deputy Colburn conceded he could not state “as a matter of fact without speculation” that the assailant was a member or an affiliate of the Hell’s Angels. (Italics added.)

Plaintiffs cannot defeat summary judgment with proof of causation that is based on mere speculation, conjecture and inferences. (Saelzler, supra, 25 Cal.4th at p. 775.) Like in Saelzler, plaintiffs’ inability to prove the identity of Garcia’s assailant prevents them from showing a causal link between defendants’ failure to take extra security precautions and Garcia’s injury. Just as the assailants in Saelzler “might have been unauthorized trespassers” (Id. at p. 776), Garcia’s assailant might have been a Hell’s Angels member or associate who attended the event at the bar. But just as the assailants in Saelzler could also have been persons lawfully permitted on the premises and who would not have been excluded by any increased security measures (ibid.), Garcia’s assailant might also have been someone who entered the bar independent of the Hell’s Angels events and who would not have been kept away from Garcia by any of the security precautions plaintiffs’ propose. Consequently, “ ‘when the matter [of causation] remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ ” (Id. at pp. 775–776; see Leslie G., supra, 43 Cal.App.4th at p. 483 [“Since there is no direct evidence that the rapist entered or departed through the broken gate (or even that the broken gate was the only way he could have entered or departed), [plaintiff] cannot survive summary

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judgment simply because it is possible that he might have entered through the broken gate.”])

In addition, even if we accepted plaintiffs’ speculation that the assailant was somehow tied to the Hell’s Angels event, they have not presented any evidence that more or better security measures would have prevented Garcia’s injuries. Even if defendants hired additional security to work during the Hell’s Angels event, there is no evidence to show the additional security still would have been on duty more than an hour and a half after the majority of the event’s participants had left and just 15 total patrons remained at the bar. And there is no evidence additional security would have prevented the assault. A bar security guard immediately responded to the altercation, but the assault occurred too quickly for him to stop the assault and prevent Garcia’s injuries. As in other cases, plaintiff’s expert testimony that the absence of added security contributed to the assault is pure speculation. (Saelzler, supra, 25 Cal.4th at p. 774 [collecting cases].)

Last, there is no evidence Garcia, an admitted “regular” at the Kraken and a retired sheriff’s deputy, would have opted not to patronize the bar that afternoon had he known a Hell’s Angels event had taken place earlier in the day and, potentially, a small number of the event’s participants would be remaining at the bar when he arrived. Garcia had in fact entered the bar, left after having a cocktail and beer, and returned to the bar despite any people connected to the event remaining. Thus, there is no evidence that any notice defendants might have provided its patrons would have deterred Garcia from coming to the bar at the time of the assault.

Because there is no evidence to show the precautionary measures plaintiffs propose would have prevented the assault, plaintiffs cannot show it

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is more probable than not Garcia would not have been injured if defendants had taken the measures. (Saelzler, supra, 25 Cal.4th at pp. 776, 781; Sandoval, supra, 94 Cal.App.4th at pp. 1384, 1386.) Accordingly, there is no triable issue of fact as to causation and the trial court properly granted summary judgment in defendants’ favor on this basis.

DO, J.