Case Name: Ba Tran, et al. v. 2000 Senter Road, LLC, et al.

Case No.: 2014-1-CV-260736

Motion for Summary Judgment by Defendant 2000 Senter Road, LLC

Defendant 2000 Senter Road, LLC (“2000 Senter”) owns real property located at 2000 – 2036 Senter Road in San Jose (“Property”). (Second Amended Complaint (“SAC”), ¶3.) In or about March 2009, defendant 2000 Senter leased commercial property commonly known as 2010 Senter Road (“Premises”) to defendants Tam Van Tran aka Tommy Tran and Lien Tran (collectively, “Trans”), doing business as Sound Image with an agreed use of the premises for car audio and alarm installation and window tinting. (Second Amended Complaint (“SAC”), ¶13.)

By late March 2012, Sound Image converted the second floor portion of its leased premises into a nightclub. (SAC, ¶14.) Between March 2012 and April 2013, the Sound Image nightclub was open for business almost every night from 9:00 pm until 6:00 am, had approximately 50 to 100 patrons per nights, sold alcohol without any license, and had approximately 15 strippers. (SAC, ¶15.) Between March 2012 and April 2013, the Sound Image nightclub was frequented by many members of criminal street gangs. (SAC, ¶16.) Between March 2012 and April 2013, several fights, assaults, and other violent incidents occurred at the Premises and/or in the parking lot controlled by defendant 2000 Senter, as a result of the Sound Image nightclub activities. (SAC, ¶17.) Prior to April 2013, defendant 2000 Senter received complaints from other tenants regarding noise, trash, vomit, urine, and beer bottles on the premises due to the Sound Image nightclub. (SAC, ¶18.)

Defendant 2000 Senter, its owners, and property manager knew that Sound Image nightclub operated nightly on the premises and that it attracted known gang members and knew or should have known that violent incidents were occurring on the property. (SAC, ¶¶19 – 20.) Despite this knowledge, defendant 2000 Senter took no action to decrease the risk of harm to others; defendant 2000 Senter did not hire security, did not call police, and did not evict the Trans. (SAC, ¶21.) The Trans paid defendant 2000 Senter large sums of cash generated from the Sound Image nightclub in consideration for defendant 2000 Senter’s permission for continued operation of the nightclub. (SAC, ¶22.)

In the early hours of April 6, 2013, plaintiffs Ba Tran and Anh Ngoc Tran’s son, Viet Tran, was in the parking lot outside the Premises with the intention of attending the Sound Image nightclub. (SAC, ¶23.) At the same time, several gang members involved in a physical fight inside the nightclub continued the altercation downstairs in the parking lot. (Id.) Gunshots were fired and Viet Tran was shot and killed while on defendant 2000 Senter’s premises. (Id.)

On February 8, 2014, plaintiffs Ba Tran and Anh Ngoc Tran (collectively, “Plaintiffs”) filed a complaint against defendant 2000 Senter, among others. On December 22, 2015, after obtaining leave from the court, Plaintiffs filed the operative SAC which asserts a single cause of action for negligence against defendant 2000 Senter, among others.

On April 25, 2016, defendant 2000 Senter filed this motion for summary judgment.

On June 27, 2016, Plaintiffs filed opposition to the motion for summary judgment.

III. Plaintiffs’ application to file exhibits under seal is DENIED without prejudice.

In connection with its opposition, Plaintiffs filed an application to file exhibits under seal. “An application for an order is a motion.” (Code Civ. Proc., § 1003.) “Absent an order shortening time, the hearing date specified in the notice must allow for service of the moving papers in compliance with CCP §1005: i.e., at least 16 court days before the hearing, plus additional time for service by mail.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ¶9:31, p. 9(I)-19.) Plaintiffs’ application for an order to file the exhibits under seal is made without adequate notice having been filed and served by mail only 10 court days before the hearing date. For that reason, Plaintiffs’ application to file exhibits under seal is DENIED without prejudice.

IV. Plaintiffs’ request for judicial notice.

In support of their opposition, Plaintiffs request judicial notice of (1) the fact that Sound Image did not have a license for the sale of alcoholic beverages; (2) death certificate of Viet Tran; and (3) complaint – unlawful detainer, 2000 Senter Road, LLC v. Tam Van Tran, et al., Santa Clara Superior Court No. 113CV245553, filed April 30, 2013.

Plaintiffs’ request for judicial notice of the fact that Sound Image did not have a license for the sale of alcoholic beverages is DENIED for failure to comply with California Rules of Court, rule 3.1113, subdivision (l) and rule 3.1306, subdivision (c). Plaintiffs’ request for judicial notice is otherwise GRANTED. (See Evid. Code, §452, subds. (d) and (h); People v. Woodell (1998) 17 Cal.4th 448, 455; Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 956.)

V. Defendant 2000 Senter’s motion for summary judgment is DENIED.

The only cause of action asserted against defendant 2000 Senter is for negligence. “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.).) “Broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406 citing Ann M., supra, 6 Cal.4th at p. 674.) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

“[T]he existence of a duty is a question of law for the court.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237; see also Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.) In moving for summary judgment, defendant 2000 Senter contends it did not owe Plaintiffs a duty under these particular circumstances.

“The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) “The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372.) “[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.” (Ann M., supra, 6 Cal.4th at p. 676.)

Defendant 2000 Senter cites, among other decisions, Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 for the following:

“ ‘In the case of a landowner’s liability for injuries to persons on the property, the determination of whether a duty exists, “involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the 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 the 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.” [Citations.]’ [Citation.]” (Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 430, 34 Cal.Rptr.3d 677; see also Padilla v. Rodas, supra, 160 Cal.App.4th 742, 747, 73 Cal.Rptr.3d 114.) “Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213, 63 Cal.Rptr.3d 99, 162 P.3d 610.) The existence and scope of a defendant’s duty is a question of law for the court’s resolution. (Shin v. Ahn (2007) 42 Cal.4th 482, 488, 64 Cal.Rptr.3d 803, 165 P.3d 581; Padilla v. Rodas, supra, at p. 747, 73 Cal.Rptr.3d 114.)

…where a landlord has relinquished control of property to a tenant, a “bright line” rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. “ ‘Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’ [¶] Limiting a landlord’s obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612, 77 Cal.Rptr.3d 556, citing Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131–1132, 130 Cal.Rptr.2d 141.)

Relying on the above, defendant 2000 Senter argues for application of the same “bright line” rule to argue plaintiff must demonstrate 2000 Senter’s actual knowledge of a dangerous condition in order to impose a duty. Defendant 2000 Senter contends it did not owe a duty to Plaintiffs or decedent here because it had no actual knowledge of any potential risk of criminal conduct like the fighting/ shooting which occurred. Defendant 2000 Senter proffers evidence in the form of deposition testimony from defendant Tan Lu, an alleged shareholder and agent of 2000 Senter, who testified that he did not have knowledge of a nightclub being operated on the subject property prior to the shooting death of Viet Tran on April 6, 2013. (See Defendant 2000 Senter Road, LLC’s Separate Statement of Undisputed Material Facts in Support of Defendant’s Motion for Summary Judgment (“Defendant’s UMF”), Fact No. 8.) Defendant 2000 Senter also relies on its verified response to special interrogatories propounded by one of the Plaintiffs in which defendant 2000 Senter denies any knowledge of Sound Image holding parties, nightclubs or any similar events at the Premises. (Id.) Defendant 2000 Senter also proffers evidence in support of its assertion that it did not know Sound Image was using the Premises for any unlawful purpose prior to the shooting death of decedent on April 6, 2013. (See Defendant’s UMF, Fact No. 9.) Finally, defendant 2000 Senter submits evidence that it was unaware of any dangerous condition or violent incidents on the property prior to the shooting death of decedent. (See Defendant’s UMF, Fact No. 10.)

In opposition, Plaintiffs contend the landlord’s actual knowledge of a dangerous condition is not the correct rule, but even if it were, Plaintiffs proffer evidence which would present a triable issue of material fact as to whether defendant 2000 Senter had actual knowledge of a potential risk prior to decedent’s death on April 6, 2013. In particular, Plaintiffs proffer evidence that David Castaneda (“Castaneda”), defendant 2000 Senter’s property manager, inspected the Premises on March 29, 2013 and, specifically, the second floor of the Premises where the nightclub was being operated in connection with a sale of the Property. (See Plaintiffs’ Separate Statement of Disputed and Undisputed Material Facts in Opposition to Defendant 2000 Senter Road, LLC’s Motion for Summary Judgment (“Plaintiff’s Additional MF”), Fact Nos. 34, 47, 51, and 52.) Although Castaneda did not believe the second floor was being operated as a nightclub, Plaintiffs submit evidence which, at the very least, creates a triable issue as to whether Castaneda’s stated belief is reasonable and, thus, whether defendant 2000 Senter had actual knowledge the Premises were being used for an unlawful purpose prior to the shooting death of decedent on April 6, 2013. (See Plaintiff’s Additional MF, Fact Nos. 15, 16 and 48.)

Defendant 2000 Senter also argues, incorrectly, that it did not have an ongoing duty to inspect relying on Becker v. IRM Corp. (1985) 38 Cal.3d 454, 468 – 469 for the proposition that a landlord’s duty to inspect for dangerous or defective conditions arises only prior to leasing the premises and upon renewal, but not during the tenancy. “[A] landowner’s duty includes the duty to exercise reasonable care to discover that criminal acts are being or are likely to be committed on its land.” (Ann M., supra, 6 Cal.4th at p. 679.) Defendant 2000 Senter does not submit any admissible evidence to show that it fulfilled this duty. Moreover, Plaintiffs’ evidence cited above would create a triable issue as to whether defendant 2000 Senter fulfilled this duty.

Next, defendant 2000 Senter apparently argues that, even if it did breach a duty by failing to evict the Trans or failing to hire security, its nonfeasance would not have prevented (i.e., did not cause) the decedent’s death. However, defendant 2000 Senter has not met its initial evidentiary burden of proof of negating the element of causation. Since defendant 2000 Senter has not met its initial burden, the burden does not shift to Plaintiffs to show that a triable issue of material fact exists. (See Code Civ. Proc., §437c, subd. (p)(2).)

Finally, defendant 2000 Senter seemingly argues it did not have a duty to evict the defendant Trans or to hire security. Defendant 2000 Senter relies upon Castaneda v. Olsher (2007) 41 Cal.4th 1205 (Castaneda) in support. However, as the Court in Castaneda explained, “The duty analysis we have developed requires the court in each case (whether trial or appellate) to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. ‘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.]” (Castaneda, supra, 41 Cal.4th at p. 1214.) Defendant 2000 Senter’s argument focuses on the scope of a landlord’s duty to either evict or to hire security. Here, however, Plaintiffs’ SAC alleges not just that defendant 2000 Senter had a duty to evict and a duty to hire security, but also alleges that defendant 2000 Senter had a duty to inspect the premises and had other statutory duties. (SAC, ¶¶25 – 26.) Whether defendant 2000 Senter had/ breached a duty to evict or duty to hire security is not dispositive since the cause of action asserted by Plaintiffs is much broader.

For the above stated reasons, defendant 2000 Senter’s motion for summary judgment is DENIED.