2015-00177758-CU-PO

Alfonso Ramos-Solorio vs. Wal-Mart Stores, Inc.

Nature of Proceeding: Motion for Summary Judgment

Filed By: Noel, Matthew P.C.

Defendant/Cross-Defendants and Cross-Complainant U.S. Security Associates, Inc.’s (“USSA”) Motion for Summary Judgment is ruled upon as follows.

This is a personal injury action. Plaintiffs Alfonso Ramos-Solorio (“Alfonso”) and Maria Guzman (“Maria”) allege that on October 8, 2013, Alfonso was at a Wal-Mart store when he was physically beaten by another customer, Robert Burkett (“Burkett”) Plaintiffs allege that the assault took place while employees, agents, representatives, security guards, and/or other safety personnel of Wal-Mart and co-defendant AlliedBarton Security Services (“Allied”) observed the anticipated, imminent conduct, but took no action and/or failed to stop the beating, and took no action to summons help, assistance, and/or aid for Alfonso.

On 7/10/2015, Allied filed a cross-complaint for total and equitable indemnity against Burkett. On 1/8/2016, Allied filed a Roe amendment adding USSA as Roe 1. On 1/20/2016, Plaintiffs filed a Doe amendment adding USSA as Doe 1.

The complaint asserts a cause of action for negligence and loss of consortium.

USSA moves for summary judgment of Plaintiffs’ complaint and Allied’s cross-complaint on the ground that: (1) USSA did not breach its duty, and (2) USSA did not cause or contribute to the injuries. Plaintiffs and Allied each filed oppositions to the motion. Plaintiffs also filed a joinder to Allied’s opposition, which the Court grants.

The following facts are undisputed:

Maria was in the checkout lane when she was approached by Burkett. (UMF 2.) Burkett verbally harassed Maria and intentionally pushed her cart into her while she was waiting in line at the check stand. (UMF 2.) Jessie Simon (“Simon”) was the Asset Protection Associate working for Wal-Mart at the time of the incident. (UMF 3.) Simon learned of the altercation (UMF 6) and communicated over the radio on the security channel that there was an altercation. (UMF 12.) Simon then observed Burkett being escorted from the store by Allied guards. (UMF 20.) Alfonso then walked outside of the store and stood on the sidewalk for 29 seconds. (UMF 23.) He then walked into the parking lot for approximately three to four seconds before he was struck in the head by Burkett. (UMF 23.)

At the time of the incident, USSA contracted with Wal-Mart to provide security on the exterior of the store. (UMF 30.) The agreement stated that USSA was to provide the following services: (1) outside security patrolling the parking lot and exterior of the Wal-Mart facility continuously and in a manner highly mobile and visible to the public and to Wal-Mart customers and associates, if applicable; (2) inside security
staffing a position at the entrance/exit of the Wal-Mart facility continuously and in a manner highly visible to the public and to Wal-Mart customer and associates, if

applicable; (3) observing and immediately reporting to Wal-Mart facility management all suspicious and/or criminal activity; (4) referring Wal-Mart customers to Wal-Mart facility management for assistance. (Id.) USSA was to provide one security guard to patrol the parking lot and deter criminal activity. (Id.)

Duty

According to USSA, given the language of the contract, USSA was not to intervene in a physical altercation. (UMF 29.) USSA’s onsite guard was limited to acting as a visible security presence, deterring crime, and observing and reporting potential criminal activity in the parking lot. (UMF 30.)

Plaintiff disputes that the USSA guard’s duty was so limited. USSA’s person most knowledgeable testified that: (1) if a USSA guard observes a suspicious person leaving the store and feels a customer, guest, and/or themselves is in danger of physical harm, they can then physically react if there is no other option to withdraw themselves. (Plaintiffs’ Statement of Undisputed Facts (“PSUF”) 35), (2) the expectation is that if a USSA guard learns over the radio that a customer has been escorted out of Wal-Mart, the guard is to respond to be able to observe and ensure the safety and security of Wal-Mart’s guests (PSUF 36); (3) when on patrol, the USSA security guards are to be proactive (PSUF 37), and (4) USSA guards working at the Wal-Mart store at the time of the incident were expected to conduct radio checks every thirty minutes. (PSUF 38).

Plaintiffs and Allied also dispute whether USSA was notified of the altercation in the store and that Burkett was being escorted out of the store. (PSUF 10, Allied’s Statement of Undisputed Facts (“ASUF”) 17, 18, 19.) Simon testified that it was communicated over the security radio that Burkett was leaving the store. (Id.) Having a security radio, the USSA security guard would have received the radio communication. (Id.) The USSA guard did not proceed to the scene of the altercation, but the USSA security vehicle was observed in the parking lot. (PSUF 11, ASUF 20-21.)

The Court concludes that Plaintiffs and Allied have demonstrated a triable issue of material fact as to duty. The motion for summary judgment on this ground is DENIED.

Causation

USSA also moves for summary judgment on the ground that it did not cause or contribute to Plaintiffs’ injuries.

A “plaintiff meets the causation element by showing that: (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant of liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “These are factual questions for the jury to

decide, except in cases in which the facts as to causation are undisputed.” (Id.)

“A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” (1-400 CACI 430 (2018).) “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Id.)

USSA contends that it did not cause or contribute to the altercation because it was not notified of any potential physical altercation and never informed the USSA guard that Burkett was being escorted out of the store. (UMFs 21, 22.) As discussed above, Plaintiffs and Allied have disputed whether USSA was notified of the altercation in the store and that Burkett was being escorted out of the store. (PSUFs 10-11, ASUF 17-21.) There is also a dispute to whether USSA’s guard was to intervene.

Whether USSA’s conduct was a substantial factor is a factual question for the jury to decide. The motion for summary judgment is DENIED.

The Court declines to rule on Allied’s objections to evidence. Allied objected to USSA’s undisputed material facts in USAA’s Separate Statement, the undisputed material facts are not “evidence.”

This minute order is effective immediately. Plaintiffs shall prepare a formal order pursuant to CRC Rule 3.1312 and CCP 437c(g).

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(A). USSA’s counsel is directed to contact Plaintiffs’ and Allied’s counsels forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If USSA counsel is unable to contact Plaintiffs’ and Allied’s counsels prior to hearing, USSA’s counsel shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(A).