2014-00167573-CU-PO

Anthony Yazzie vs. 705-03 J Street, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Franco, K. Anderson

Defendant 705-03 J Street, Inc.’s Motion for Summary Judgment is granted.

Plaintiff’s Request for Judicial Notice of the Parcel Map is granted.

Defendant’s Evidentiary Objections are sustained for the reasons stated in the Formal Order on Evidentiary Objections that will be filed once the ruling becomes final.

Plaintiff was a patron at defendant’s hip-hop nightclub, Shenanigans, which was located at 705 J. Street. The First Amended Complaint [unverified] alleges that when Plaintiff was leaving the premises, and while he was standing on the sidewalk immediately in front of Shenanigans, one unknown customer also was exiting the facility opened fire with a gun and shot Plaintiff in the lower right leg. (FAC ¶ 8.) Plaintiff alleges that the security guards (bouncers) breached a duty to protect plaintiff on the premises.

Plaintiff’s FAC contains a 1st cause of action for Negligence, a 2nd cause of action for premises liability, a 3rd cause o f action for Failure to Warn, and a 4th cause of action for Negligent Security.

Defendant has established by admissible evidence that the shooting did not take place in front of Shenanigans, but rather around the corner and half way down the block on 7th Street, on a public sidewalk, while plaintiff was walking to his car. When the club was closing, the security guards required all patrons to exit to the right towards 7th Street. (UMF 7) Plaintiff was shot by an unknown assailant around the corner from the nightclub. The assailant had been walking southbound from the opposite direction as plaintiff was walking northbound on 7th Street to his car. Defendant has presented undisputed evidence that, contrary to the allegations of the FAC, plaintiff was texting on his phone while walking away from the club on 7th Street, when he bumped into the assailant. The assailant thereafter turned around northbound and crossed the street before he shot the plaintiff in the leg.(UMF 8-12) Plaintiff was shot in close proximity to 917 7th St which is 64.333 yards [approximately 193 feet] from Shenanigans. (UMF 14-15)

Sacramento City Code 5.108.110 requires each responsible person to make reasonable efforts to control the conduct of patrons so as to prevent or minimize disorderly or unlawful conduct within the establishment and within 50 feet of the establishment.

“Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member.” [Citations.] Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal. App. 3d 1142, 1145. In Steinmetz, a student was stabbed after a mixer one block away from the premises owned by defendant. Our third appellate district held that the defendant had no duty to protect the plaintiff off premises. The facts of Steinmetz are strikingly similar to the facts of this case. Here, Defendant has established that plaintiff’s injuries occurred off premises after the plaintiff left the premises.

“The duty to take affirmative action for the protection of individuals coming upon the land “is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358,

368. In Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, the Supreme Court suggested that a proprietor (there, a hospital) might have a duty to provide guards to protect patrons and invitees (in that case, a physician who practiced at the hospital) from criminal attacks by third parties upon the premises, so long as such an

attack was reasonably foreseeable “in light of all the circumstances.” (Id., at pp. 126-129; but see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666.) As noted in Steinmetz, “[g]enerally, however, a landowner has no right to control and manage premises owned by another. CHDC had no right to station security guards on premises it neither owned nor controlled. Nor did CHDC have any right to place lighting in any parking area other than its own parking area. Moreover, neither CHDC nor Chamber had any right to control the activities of either their invitees or third parties where those activities occur off premises which they neither own, possess, nor control. Under the facts here presented, there is simply no basis for finding that either CHDC or Chamber owed any duty of care to decedent while decedent was on premises neither owned, possessed, nor controlled by either defendant.” Id. at 1146.

In opposition to the motion, plaintiff has now abandoned the allegations of this complaint and his verified deposition testimony. Plaintiff now admits he was shot around the corner on 7th Street, near a dirt planter area outside of 917 7th Street, at a location that is 105 feet from the corner of 7th and J. Shenanigans is approximately another 20 feet from the corner. Plaintiff admits that the assailants were walking northbound on 7th St when they turned and fired at him from between parked cars. (Plaintiff’s Opposition Separate statement, Fact #11) Plaintiff does not dispute that he was shot in close proximity to 917 7th Street (Plaintiff’s opposition separate statement Fact #14).

As noted, in response to UMF 48, plaintiff does not dispute that he was shot in front of 917 7th Street, 64 yards from the ingress/egress of Shenanigans. However, in response to UMF 15, which states the same facts as UMF 48, Plaintiff contends that he was shot less than 50 feet from Defendant’s property line. Plaintiff offers no admissible evidence that the subject dirt area around the tree in front of 917 7th Street is less than 50 feet from the property line. Rather , the declaration he relies on, that of Rod Christopher submitted with the moving papers, stated that the corner of the dirt area where he was shot is 53 yards from the premises. Materially, there is no admissible evidence he was shot within 50 feet of the Shenanigans premises ingress/egress.

Defendant also established that it had no less than six security guards stationed in and around the club. (SMF 5, 6) However, the number of security provided is irrelevant given that Shenanigans had no duty to provide security for property over which it had no ownership, possession or control. Even if the City ordinance provided evidence from which the Court could determine a limited duty existed to protect patrons within 50 feet of the premises, it is undisputed that the injury occurred outside of the 50 ft zone required by the ordinance. Plaintiff offers no evidence to dispute the fact that the shooting occurred on public property not owned by defendant.

Plaintiff’s reliance on Morris v De La Torre (2005) 36 Cal.4th 260, 266-267, is misplaced. In that case, the plaintiff was injured in the restaurant parking lot after the assailant, who had stolen a knife from the kitchen, stabbed the victim. And, in Delgado v Trax Bar & Grill (2005) 36 Cal.4th 224, the injury occurred in the parking lot owned by the bar and grill [A landlord generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts of third parties. Id. at p. 235]. Here, the dispositive undisputed fact is that the shooting did not occur on defendant’s property or within 50 feet of the entrance of the restaurant. It occurred no closer than 53 yards from the premises, based on admissible evidence submitted by plaintiff. Indeed,

whether it occurred 64 yards, 41 yards, or some other number farther than 50 feet is not a material fact as long as the property was not under the ownership, possession, control of defendant.

The Court rejects plaintiff’s argument that Shenanigans had a duty to control the public premises between the establishment and the parking lot behind the buildings, which plaintiff contends defendant controlled. Plaintiff contends that there should have been security guards placed along 7th street so as not to create a “vacuum” between the exit of the nightclub and the parking lot that was behind the building where two security guards were present. Courts have addressed the duty issue; “Turning to the question of the scope of a landlord’s duty to provide protection from foreseeable third party crime, … we have recognized that the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] ‘ “[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” [Citation.]’ ” (Ann M., supra, 6 Cal.4th at pp. 678-679.) The Supreme Court has described this as a “sliding-scale balancing formula.” (Delgado, supra, 36 Cal.4th at p. 243.)

Here, because plaintiff has not shown how the providing of a parking lot in the back of the building somehow increased the risk to plaintiff of being shot while walking down a public sidewalk in the direction of the parking lot, no duty to prevent the shooting existed. See Vasilenko v Grace Family Church (2017) 3 Cal.5th 1077, 1082 (In the absence of a statute, a landowner is under no duty to maintain in a safe condition a public street abutting upon the landowner’s property unless the landowner created the danger.)

Plaintiff’s “special relationship” argument is also rejected. Plaintiff cites to the rule that a proprietor who serves intoxicating drinks to customers for consumption on the premises must exercise reasonable care to protect his patrons from injuries at the hands of fellow guests. Saatzer v Smith (1981) 122 Cal.App.3d 512, 518. However, since there is no evidence that the assailant even was a patron of the establishment or that he shot plaintiff after being provided alcohol by defendant, there is no breach of duty arising from a special relationship.

Summary judgment provides “courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

The Court must grant a motion for summary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.

3d 18, 35). Section 437c(c) imposes affirmative duty
on a Court to grant summary judgment motion in appropriate case. (Preach v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450). The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. (Pittelman v. Pearce (1992)

6 Cal. App. 4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993)
18 Cal. App. 4th 394, 404).

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991)

231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Second, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)
(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only

required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855).

Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

As the Court has determined that there was no duty to prevent injury to the plaintiff on premises not under the possession, ownership or control of defendant, the Court need not reach the alternative arguments that the security provided was reasonable and that the lack of security was not a proximate cause of the injury.

The Motion for Summary Adjudication of each cause of action, and the Motion for Summary Judgment is granted.