Lopez v. Baca

120 Cal. Rptr. 2d 281, 98 Cal. App. 4th 1008

• Court: California Court of Appeal
• Decided: June 5, 2002
• Docket: B150228
• Status: Published

Opinions

Opinion

PERLUSS, J.

Plaintiff Jose Antonio Lopez (Lopez) appeals a judgment in a premises liability action entered in favor of defendant Consuelo Baca (Baca) after the trial court granted Baca’s motion for summary judgment. Lopez, who was shot in the head by another patron while attending a nightclub Baca owned, sued Baca for negligence, claiming Baca unreasonably failed to provide security guards to check customers for weapons before allowing them to enter the premises. The trial court concluded Baca did not owe a duty to provide security guards because the shooting in this case was unforeseeable as a matter of law. We affirm.

Factual and Procedural Background

1. Facts

The facts set forth in the parties’ separate statements are undisputed. Baca, owner of El Castillo Nite Club (the club), hired women to solicit the club’s male patrons to buy drinks for them at an elevated price and then paid the women a commission from the proceeds of each sale.¹ In February 2000 a woman approached Lopez at the club and asked him to buy her a beer. When Lopez refused to pay the elevated price, the woman called Lopez a derogatory name and returned to her male companion. Soon thereafter, the woman’s male companion left the club, returned with a gun and, without “any warning,” shot Lopez in the head. Neither Baca nor Lopez knew the shooter or had seen him in the club before that night.

The club employed a security guard to check customers for weapons on Friday, Saturday and Sunday nights, but not on weeknights. Lopez was shot on a Tuesday night when no security guard was on duty.

2. Proceedings

Lopez sued Baca for negligence, alleging Baca unreasonably failed to provide security guards to protect patrons from violent attacks. Baca brought a motion for summary judgment asserting she owed no duty to hire security guards on weeknights because violent crime at the club was unforeseeable. She claimed she was unaware of any other shootings or “altercations” occurring at the club prior to this incident. She also argued there was no causal connection between the lack of security guards and Lopez’s injuries.

Lopez opposed the motion, asserting that violent attacks at the club wére rampant. Lopez included with his opposition a computer printout from the Los Angeles Police Department purportedly showing reported crimes and arrests at the club between 1995 and 2000. Lopez alleged, without a supporting declaration, that the printout revealed 16 reported crimes at the club’s address between 1995 and 2000, including two assaults with a deadly weapon in August 1995 and in September 1996, respectively, and five robberies between 1995 and 1997. No descriptive details about any of these purported incidents were provided. Lopez also attached reports from the Department of Alcoholic Beverage Control, showing it had temporarily suspended the club’s liquor license in 1995 due to the club’s illegal practice of paying employees to solicit customers to buy drinks. One day before the hearing, Lopez filed a “supplemental separate statement” attaching an additional computer printout from the Los Angeles Police Department, purportedly showing 236 “police patrol calls for service” made at the club from January 1995 through July 2000.²

Baca objected to all of these documents, asserting lack of foundation and relevance.³ Among other things, Baca insisted that none of the evidence showed prior similar crimes. The trial court sustained Baca’s objections to all of Lopez’s proffered evidence⁴ and granted summary judgment in Baca’s favor. The court concluded Baca had no duty to provide security guards to protect Lopez because there was no admissible evidence the shooting was foreseeable; alternatively, the trial court held, even if there was such a duty, there was no causal connection between the absence of a security guard and Lopez’s injuries.

Lopez filed a motion for reconsideration, asserting the same arguments as in his opposition to the summary judgment motion. This time, however, Lopez included narrative police reports describing some of the arrests that took place at the club five years earlier (in 1995), including one assault with a beer bottle, one attempted robbery and a negligent discharge of firearm by a patron who shot at the floor. Lopez also included a declaration from a “security expert” who had reviewed the police records, determined that 60 percent of all the reported crimes at the club took place during the week, and opined that the lack of a security guard was a “contributing factor in the shooting of Mr. Lopez.” Baca objected to the reconsideration motion on several grounds, including the motion was untimely, contained no “new or different facts” and was unaccompanied by an affidavit from the moving party attesting to the basis for the motion. The trial court denied Lopez’s reconsideration motion and entered judgment in favor of Baca. Lopez filed a timely appeal from the judgment.

Contentions

Lopez contends the trial court erred in concluding that Baca had no duty to employ security guards during the week. Lopez also insists a triable issue of material fact exists as to whether the absence of a security guard was a “substantial factor” in bringing about his injuries.

Discussion

1. Standard of Review

Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s grant of summary judgment de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action ....’” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477 [110 Cal.Rptr.2d 370, 28 P.3d 116]; Code Civ. Proc., § 437c, subd. (o)(2).) Where the plaintiff fails to satisfy this burden, judgment in favor of the defendant shall be granted as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

Lopez does not challenge the trial court’s ruling sustaining Baca’s objections to certain evidence offered in opposition to the summary judgment motion. As a result, any issues concerning the correctness of the trial court’s evidentiary rulings have been waived. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 739, fn. 4 [41 Cal.Rptr.2d 719]; see Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [188 Cal.Rptr. 115, 655 P.2d 317]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 785 [79 Cal.Rptr.2d 273].) We therefore consider all such evidence to have been properly excluded. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [35 Cal.Rptr.2d 574] [not the proper function of Court of Appeal to search the record on behalf of appellants or to serve as “backup appellate counsel”].)

2. The Trial Court Properly Concluded Baca Owed No Duty to Lopez to Provide Security Guards Because the Shooting Was Unforeseeable as a Matter of Law

It is well settled that landowners owe a duty to tenants and invitees to maintain their premises in a reasonably safe condition. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189 [91 Cal.Rptr.2d 35, 989 P.2d 121] (Sharon P.), disapproved on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 [107 Cal.Rptr.2d 841, 24 P.3d 493].) This duty encompasses a responsibility “to take reasonable steps” to secure the premises against “foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207] (Ann M.), italics added.) Foreseeability in this context is a question of law for the court. (Id. at p. 678.) In analyzing the existence and scope of a landowner’s duty, the court must balance the foreseeability of the harm alleged against the burden of the duty to be imposed—the greater the burden of preventing the harm, the higher the degree of foreseeability required. (Sharon P., at p. 1195.) Because the burden of employing private guards to protect against third party criminal conduct is great, “a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. . . . [T]he 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.” (Ann M., at p. 679.)

a. Lopez has abandoned the theory that the landlord had notice of prior similar crimes occurring on the premises.

In arguing that the trial court erred in concluding that Baca had no duty to hire security guards on weekdays to protect patrons of the club from criminal activity, Lopez does not contend, as he did in the trial court, that prior incidents of similar violent crime occurring at the club obligated Baca to ensure that adequate security measures were in place to protect the club’s patrons.⁵ Instead, Lopez argues that a Fichera bar is an “inherently dangerous” enterprise, requiring its owner to provide security for its patrons regardless of whether the nightclub experienced any prior incidents of similar criminal conduct. Alternatively, he contends that Baca’s hiring of weekend security guards constitutes the assumption of an enforceable duty to protect patrons even in the absence of foreseeable criminal activity.⁶

b. There is no evidence that the nightclub was an “inherently dangerous” enterprise.

While conceding that evidence of prior incidents of similar crimes is ordinarily required to establish a duty to hire security guards (see Ann M., supra, 6 Cal.4th at p. 679), Lopez insists prior similar crimes evidence is unnecessary in this case because the club’s violation of statutes prohibiting payment of a commission to persons who solicit patrons to buy drinks⁷ rendered the club “inherently dangerous.” In Ann M. the Supreme Court left open the question whether some commercial property is, by its very nature, so “inherently dangerous that, even in the absence of prior similar incidents, providing security guards will fall within the scope of a landowner’s duty of care.” (Ann M., supra, 6 Cal.4th at p. 680, fn. 8.) There, the court intimated without deciding that certain types of property, such as all-night convenience stores and underground parking garages, may provide “ ‘ “an especial temptation and opportunity for criminal misconduct” ’ ” so as to create a duty to provide heightened security measures irrespective of prior incidents of similar conduct. (Ibid.)

More recently, however, in Sharon P., the Supreme Court retreated from its earlier suggestion in Ann M. that some properties could be per se inherently dangerous. Observing that crime is “ ‘endemic in today’s society’ ” and that all businesses could attract crime to some extent, the court declined to find underground parking garages inherently dangerous and suggested that the “inherently dangerous” characterization was to be used sparingly, if at all; otherwise all businesses could fall victim to a per se rule that would lead to imposition of liability even in the absence of genuine foreseeability. (Sharon P., supra, 21 Cal.4th at p. 1194.)

The designation of an “inherently dangerous property,” if such a designation still exists after Sharon P., is reserved for properties that “regardless of their individual physical characteristics and locations” are by their nature, prone to violence. (Sharon P., supra, 21 Cal.4th at p. 1192.) Lopez fails to cite any evidence or any authority “from which we may confidently conclude” that all bars or nightclubs, or even those operating in violation of statutes precluding payment for the solicitation of beverages, are by their nature prone to violent criminal attacks and are thus inherently dangerous. (Ibid.) Even if there is room after Sharon P. for some commercial enterprises to be regarded as “inherently dangerous,” requiring security as a matter of law, Lopez has not demonstrated that this enterprise is one of them.

c. The landlord did not assume a duty to protect patrons on the weekdays when she hired security guards for the weekends.

Lopez insists that by hiring security guards on the weekends, Baca assumed a duty to provide security at all times and for all purposes irrespective of whether she knew or had reason to know violent attacks would occur on the premises. Lopez relies on Trujillo v. G.A. Enterprises, Inc. (1995) 36 [43 Cal.Rptr.2d 36]. In Trujillo, a fast-food restaurant hired a private guard as a security precaution even though no prior incidents of violence had occurred on the premises. When a fight broke out at the restaurant, the security guard took one youth away, leaving the other youthful patrons to continue fighting. One of the injured youths sued the restaurant in a premises liability action. In moving for summary judgment, the restaurant argued, and the trial court agreed, the restaurant owed no duty to protect patrons in the absence of prior similar incidents of violent conduct. The Court of Appeal reversed summary judgment, holding that, although it had no duty to do so, once the restaurant hired the security guard, it assumed a duty to protect customers from criminal attack and could be liable for the guard’s unreasonable behavior under the circumstances. (Ibid.; see also Rotman v. Maclin Markets, Inc. (1994) 24 Cal.App.4th 1709, 1720 [30 Cal.Rptr.2d 130] [“[W]hen someone who is under no obligation to provide a service to another voluntarily undertakes to do so, he will be regarded as having assumed a duty to provide that service, and will be liable for negligence if he fails to use reasonable care in performing that duty.”].)

Lopez’s reliance on Trujillo misses the point. If Baca had employed a security guard, she would have assumed a duty and could be held liable if the guard acted unreasonably. (Trujillo v. G.A. Enterprises, Inc., supra, 36 Cal.App.4th at p. 1109.) Because Baca did not employ a guard on the night of the shooting, however, there was no voluntary assumption of duty.⁸

To the extent Lopez’s reliance on Baca’s act of hiring security guards on the weekends is intended to establish that Baca was aware of the potential for violence at the club, at most this evidence suggests she had reason to anticipate that such acts might occur on the weekends, not during the week. (See Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161 [1 Cal.Rptr.2d 636] [inferences offered to oppose summary judgment must be reasonably deducible from the evidence and not derived from “speculation, conjecture, imagination, or guesswork”].) Having waived any issue regarding the correctness of the trial court’s evidentiary rulings and abandoned his claim of “heightened foreseeability” based on the excluded evidence of prior incidents of violent conduct,⁹ Lopez’s claim that Baca owed a duty to protect him from attacks fails as a matter of law.

3. Lopez Cannot Rely on a Negligence Per Se Theory to Defeat Summary Judgment Where Such Allegations Were Not in the Complaint and No Motion Was Made to Amend the Complaint Prior to the Summary Judgment Hearing

Lopez’s related argument that the violation of statutes precluding solicitation of patrons to purchase alcoholic beverages constitutes negligence per se is also unavailing. Lopez’s complaint alleges only that Baca was negligent in failing to provide security and is devoid of any allegations that the club violated any statute or engaged in the illegal practice of paying women to solicit bar patrons to purchase alcoholic beverages. As Lopez neither alleged in the complaint a claim for negligence per se based on a statutory violation nor requested leave to amend the complaint to state such a theory before opposing the summary judgment motion, he is precluded from relying on that theory as a basis for seeking denial of summary judgment. (Bostrom v. County of San Bemandino (1995) 35 Cal.App.4th 1654, 1663-1664 [42 Cal.Rptr.2d 669] [defendant moving for summary judgment need not negate a legal theory not alleged in the complaint]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [272 Cal.Rptr. 227] [plaintiff seeking to defeat summary judgment based on legal theory not alleged in complaint must move to amend complaint before summary judgment hearing].)¹⁰

Even if negligence per se had been alleged in the complaint, we would still find summary judgment properly granted. Negligence per se (a presumption of duty and breach based on a defendant’s statutory violation) requires a showing that plaintiff’s injuries resulted from the very acts the statute was designed to prevent. (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1184-1185 [89 Cal.Rptr.2d 768].) The question whether the injury results from the kind of occurrence the statute was designed to prevent is a question of law (Lua v. Southern Pacific Transportation Co. (1992) 6 Cal.App.4th 1897, 1901-1902 [9 Cal.Rptr.2d 116]), and one we find easily resolvable. The statutes in question are “morals statutes” aimed at prohibiting licensed alcohol sellers from encouraging the purchase of alcohol through employees who are paid to make their hospitality contingent upon a customer’s purchase of an alcoholic beverage. (People v. Holstun (1959) 167 Cal.App.2d 479, 488 [334 P.2d 645].) Assault with a deadly weapon is simply not the type of injury those statutes are designed to prevent.¹¹

Disposition

The judgment is affirmed. Lopez shall pay Baca’s costs on appeal.

Woods, L, concurred.

1 The undisputed evidence showed that, when a male patron at the club buys a beer for himself, Baca charges S3. When he buys it for a woman who solicits the purchase, Baca charges $6 and pays $3 commission to the woman who solicited the purchase. This practice is illegal. (Pen. Code, § 303; Bus. & Prof. Code, § 25657.) The parties refer to the women engaged in this practice as “Ficheros,” a Spanish slang term.

2 There were, in fact, only 119 calls reflected on the computer printouts, not 236 as claimed by Lopez. The printouts were accompanied by a custodial declaration from the police department attesting that the documents were prepared in the ordinary course of business. The declaration did not contain a description or explanation of the content of the documents.

3 With respect to the “printout of arrests and crimes” submitted with Lopez’s opposition to the motion for summary judgment, Baca’s written evidentiary objections, filed prior to the hearing on the motion in conformity with California Rules of Court, rule 345, stated: “Lack of foundation, Evidence Code § 403; Irrelevant, Evidence Code § 350; Over-broad; Fails to distinguish between phone inside El Castillo and the public pay phone outside with the same 3054 W. Pico Blvd. Address; Fails to establish prior similar incidents; and Fails to lay foundation between different codes, abbreviations and references.”

4 Although the dissent states the trial court simply issued a blanket, one sentence ruling sustaining all of Baca’s evidentiary objections without “engaging] in a discussion on those objections” and without “allow[ing] [Lopez]’s counsel the opportunity to respond” to the objections (dis. opn., post, at p. 1021), the record shows otherwise. The trial court announced in a tentative ruling its intention to sustain the objections to the prior crimes evidence on foundation and relevance grounds, noting expressly that the evidence on its face appeared to involve mostly drug-related crimes, not criminal conduct similar to that at issue in this case. The court then entertained argument from Lopez’s counsel directed to these specific points of concern, as set forth in the appendix to the dissenting opinion. Unpersuaded by the efforts of Lopez’s counsel to counter the analysis in the tentative ruling, the trial court sustained Baca’s objections. Far from the unconsidered ruling suggested by the dissent, the order sustaining the objections was based on careful consideration of each argument presented. The trial court fully discharged its responsibilities to rule on the evidentiary objections presented. (See City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784 [97 Cal.Rptr.2d 140] [“Trial courts have a duty to rule on evidentiary objections. Part of the judicial function in assessing the merits of a summary judgment or adjudication motion involves a determination as to what evidence is admissible and that which is not.”].)

5 Because Lopez has abandoned the legal theory relating to the prior similar crimes evidence, we do not consider that legal theory or the evidence offered in connection with it on appeal. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [76 Cal.Rptr.2d 457] [“Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [appellant’s] brief.”]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [21 Cal.Rptr.2d 834] [although review on appeal from summary judgment is de novo, it is not the appellate court’s function to address arguments not raised on appeal].) To hold otherwise would negate the doctrine of waiver and require that we undertake a review of all evidentiary exclusions regardless of whether they are relevant to any of the legal arguments raised on appeal. Similarly, we decline the dissent’s invitation to consider the propriety of the order denying Lopez’s reconsideration motion, as Lopez does not raise that issue on appeal.

6 In his opening brief Lopez states: “The standard premises liability case usually involves an innocent landowner on whose property allegedly unexpected criminal activity occurs. The issue then becomes whether the landowner had notice of prior similar incidents so that the landowner should have taken precautionary measures. This type of case is exemplified by Ann M.[, supra,] 6 Cal.4th 666. HD The present case, however is not that type of case. Here, the nightclub itself affirmatively created a dangerous condition conducive to violence by operating an illegal Fichera bar. . . . This is not the typical premises liability case where the defendant may claim it was surprised by some random unexpected criminal act. El Castillo affirmatively created a dangerous situation by running an illegal Fichera bar, which was conducive to violence and resulted in a serious shooting . . . .”

Although the dissent contends we have misconstrued Lopez’s advancement of' “fallback positions” as an abandonment of any reliance on a theory of liability based upon prior similar crimes, it is difficult for us to treat Lopez’s statement that “this is not that type of case” as anything other than abandonment. In addition, although, as the dissent notes, Lopez’s opening brief states “that the atmosphere of such a place [a Fichera bar] is conducive to crime is further evidenced by police reports concerning [the bar],” (dis. opn., post, fn. 7) Lopez offers the argument expressly to show the Fichera bar was an “inherently dangerous enterprise,” not to show similarity between prior crimes and the instant offense.

7 Penal Code section 303 makes it a misdemeanor for “any person engaged in the sale of alcoholic beverages, other than in the original package, to employ upon the premises where the alcoholic beverages are sold any person for the purpose of procuring or encouraging the purchase or sale of such beverages, or to pay any person a percentage or commission on the sale of such beverages for procuring or encouraging such purchase or sale.” The same conduct is also prohibited under Business and Professions Code section 25657.

8 Lopez does not cite any authority, nor have we found any, to support his dubious proposition that the assumption of a duty to do “A” (that is, employ security on the weekends) necessarily imposes a duty to do “B” (employ security during the week) as well.

9 The reports excluded by the trial court showed only that police were called to the club’s address. On their face, they did not have any tendency to show the circumstances of the call, the type of incident involved or whether the conduct prompting the call occurred in the bar itself or outside on the street and thus failed to raise any inference that the arrest/crimes involved “similar incidents” (see Ann M., supra, 6 Cal.4th at p. 679 [security guards required only where landowner had notice of prior “similar” crimes]) and did not tend to disprove Baca’s declaration that she lacked notice of prior similar crimes. (Evid. Code, § 210; see also Sharon P., supra, 21 Cal.4th at p. 1191 [summary judgment proper where other crimes evidence, such as prior robberies in the vicinity of the parking garage where plaintiff was sexually assaulted, were not sufficiently similar to the sexual assault to create a duty to hire security guards]; Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 510 [238 Cal.Rptr. 436] [in case involving duty to hire security guards to prevent mass assassination of patrons at restaurant, summary judgment proper where theft and minor assault-related crimes on premises were not the kind of “similar” criminal conduct that would have put defendant on notice].)

10 Lopez’s alternative contention that Baca’s statutory violation amounted to “willful misconduct” must be rejected for the same reason. Even if it were a viable independent legal theory, neither the legal theory nor the facts supporting it were alleged in the complaint. .

11 In light of our holding that Baca owed no duty to provide security guards to protect Lopez, we need not reach Lopez’s causation arguments.