2016-00194693-CU-PO

William Hinzman vs. Ralph G. Coan

Nature of Proceeding: Motion for Summary Judgment

Filed By: Woog, Phil

Defendants Ralph G. Coan, et al.’s motion for summary judgment is denied.

In this action Plaintiff alleges a cause of action for negligence against Defendants in connection with injuries that he suffered when he was stabbed by non-moving defendant Javier Dandridge at Village Mobilehome Park, Located at 3330 Auburn Boulevard in Sacramento (“Park”). Defendants own the Park.

Defendants seek summary judgment on the basis that they owed no duty to Plaintiff and in any event Plaintiff cannot show causation.

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.

Next, 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). 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.)

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal. App.4th 997,1009.)

Defendants’ separate statement includes the following. Ralph “Pat” Coan was the owner of Village Mobilehome Park, Located at 3330 Auburn Boulevard in Sacramento (“Park”) when Plaintiff was stabbed by Javier Dandridge on May 25, 2014. Plaintiff had lived in the Park on two separate occasions but had not lived there since 2012. Just prior to being stabbed, Plaintiff was hanging out with his brother Tim Hinzman and Park resident James Stefanik. Prior to May 25, 2014, Plaintiff had never been attacked at the Park.

At approximately 6:00 p.m. on May 25, 2014, Plaintiff was at his car when a Crown Victoria driven by Javier Dandridge’s girlfriend entered the Park and drove around the single loop road with Dandridge in the passenger seat. Stefanik threw a beer can at the Crown Victoria. The car stopped and Dandridge demanded to know who threw the beer can. Stefanik and Plaintiff’s brother approached the Crown Victoria and a verbal exchange ensued. Plaintiff approached the passenger side of the Crown Victoria to get his brother away from the altercation. As Plaintiff pushed his brother out of the way, he was suddenly stabbed with a long knife by Dandridge who remained seated in the passenger seat of the Crown Victoria. With the knife lodged in Plaintiff’s abdomen, the driver of the Crown Victoria hit the gas and sped away. The knife, which was still held by Dandridge, pulled from Plaintiff’s body and sliced through parts of Plaintiff’s stomach, liver and intestines. Dandridge was visiting the Park and had never lived there before.

Plaintiff and Defendant Ralph Coan are not aware of any prior act by Dandridge in the Park. Defendant Ralph Coan had no prior knowledge of Dandridge whatsoever. Plaintiff had seen Dandridge on a number of occasions before the stabbing and occasionally said “Hi” to him and had never had a bad interaction with him. Plaintiff

had no reason to expect that Dandridge might stab him. Plaintiff recognized that Dandridge was the person sitting in the passenger seat of the Crown Victoria. Even if Plaintiff knew ahead of time that Dandridge was sitting in the Crown Victoria he still would have approached the car as he had no reason to believe Dandridge would attack him.

The 2011 incident referred to in Plaintiff’s complaint did not involve Plaintiff or Dandridge but rather involved Park resident Spillard and her long-time neighbor “Quasar” and involved Quasar punching Spillard in the face.

Plaintiff never reported any information to the Park that would have made the Park aware that a stabbing was likely to occur. Plaintiff had no knowledge or belief that two previous incidents involving a non-resident named Eric being attacked with a screwdriver nearly 20 years ago and with a baseball bat sometime between 2011 and 2014 were ever reported to the Park. He is not aware of any previous incidents involving the use of a knife or a gun.

Plaintiff’s mother, Roberta Solozano, a long-time Park resident has no knowledge of any other stabbings occurring in the Park. The only incident involving the use of a weapon was an incident which Ms. Solozano’s notes indicated occurred in 2017 where unknown “African Americans came in and they shot through the Park” injuring no one. Ms. Solozano did not call the police and has no recollection of reporting the event to anyone.

Defendant Robert Coan and former Park manager Jerry Keller have no knowledge of any incident involving a weapon, other than the subject incident in which Plaintiff was stabbed. Defendant Robert Coan states that from 2011 until the subject incident he was aware of only two incidents involving violence, the first an incident in 2012 where it was reported that Plaintiff was fighting with his brother in front of their home. The second was an incident where the Park’s former assistant manager Geneva Eriksen told him she had been accosted by two non-residents near a vacant space during one of her night rounds.

Plaintiff has no evidence that Defendant Robert Coan had knowledge of any similarly violent incident in the Park occurring prior to the subject incident.

Defendants move for summary judgment on the basis that they had no duty to protect Plaintiff from Dandridge and that Plaintiff cannot establish causation.

Duty

Defendants first argue that they owed no duty to protect Plaintiff from Dandridge because they had no actual knowledge that Dandridge posed a threat of violence to residents at the Park or their guests.

In determining whether a duty is owed, the Court balances 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 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.” (Rowland v. Christian (1968) 69 Cal.2d

108, 113.) It is true that “[f]oreseeability is the ‘…chief factor in [the] duty analysis.” ( Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272.) The Court’s task is “not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct…” (Ballard v Uribe (1986) 41 Cal.3d 564, 573, fn. 6 [emphasis in original].) The proper focus is on the general character of the event and inquiring whether such event is ‘likely enough in the setting of modern life that a reasonably thoughtful [person] would take into account of it in guiding practical conduct’ [citation omitted], foreseeability in evaluating negligence and causation requires a ‘more focused, fact-specific’ inquiry that takes into account a particular plaintiff’s injuries and the particular defendant’s conduct.” (Laabs, supra, 175 Cal.App.4th at 1273.)

“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.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) “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.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678-679.)

Defendants argue that they had no knowledge of the assaultive propensities of Dandridge and thus his criminal conduct was not foreseeable. “[C]ases analyze third party criminal acts differently from ordinary negligence, and require us to apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties. There are two reasons for this: first, it is difficult if not impossible in today’s society to predict when a criminal might strike. Also, if a criminal decides on a particular goal or victim, it is extremely difficult to remove his every means for achieving that goal.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1149-1150 [citations omitted].)

“What is apparent from all these cases analyzing defendants’ liability for the criminal conduct of a third party is that foreseeability is the crucial factor and that [citation omitted] and that-no matter whether a heightened or lesser degree of foreseeability was required and no matter whether the actual crime committed or only similar conduct needed to be foreseen—forseeability must be measured by what the defendant actually knew.” (Margaret M. v. Kelley R. (2006) 139 Cal.App.4th 141, 156 [emphasis added].) Thus Defendants’ knowledge here is a crucial factor as to whether any duty was owed to Plaintiff.

Here, assuming that Defendants met their burden of proof on the instant motion, the Court finds that Plaintiff has demonstrated the existence of a triable issue of material fact. To that end, Defendants’ duty argument is based on their contention that they had no specific knowledge of any incident involving the use of a weapon other than Dandridge’s stabbing of Plaintiff on May 25, 2014. As discussed above, the duty analysis must proceed upon a consideration of what the defendant “actually knew.” ( Margaret M., supra, 139 Cal.App.4th at 156.) Plaintiff has proffered evidence that Geneva Eriksen, the Park’s assistant manager saw multiple fights at the park, and

guns and knives being pulled. (Young Decl. Exh. C [Eriksen Depo.] 24:6-11.) Ms. Eriksen testified that she had a shotgun pulled on her on two occasions. (Id.) She testified that she told Ralph “Pat” Coan about the same. (Id. 24:22-25:2, 25:6-10.) She testified that there were probably 40 or 50 fights in the Park before Plaintiff got stabbed. (Id. 49:14-20.) She also testified that Dandridge while not a resident, was coming through the Park causing problems and throwing things at people. (Id. 51:2-9; 57:15-21.) Ms. Eriksen also testified that she informed Mr. Keller, the Park manager at the time on about four occasions of violent incidents involving knives or weapons. (Id. 52:4-17.) Plaintiff’s evidence directly disputes Defendants’ UMF 25 which states that neither they nor their former manager Mr. Keller had any knowledge of any incident involving the use of a weapon and UMF 26 which states that they were only aware of two other incidents involving violence. There are therefore triable issues of material fact with respect to what in fact Defendants knew, which as discussed above is a crucial factor in the foreseeability analysis. These triable issue require that the motion be denied.

While the Court noted above that the question of duty is a question of law for the Court, this does not mean that the Court resolves issues of fact on a motion for summary judgment on the basis that no duty is owed. “The determination of [duty], however, does not eliminate the role of the trier of fact. ‘In an action for negligence the plaintiff has the burden of proving…facts which give rise to a legal duty on the part of the defendant…’ [citations omitted] Where a triable issue of fact exists, it is the function of the jury to determine the facts.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, fn 4.) Only when the factual questions regarding what Defendants knew can the question of law regarding the existence and scope of their duty be addressed. Those factual questions are for the trier of fact.

To the extent that Defendants argue that they had no knowledge of any violent incidents by Dandridge himself, this does not mean they owed no duty. “Heightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 245.) “Perfect identity of prior crimes to the attack on a plaintiff is not necessary.” (Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1101.)

Finally, Defendants cannot now argue that UMFs 25 and 26 were not material. First, they relate to Defendants’ knowledge, which as discussed above is crucial to the duty analysis. In any event, as noted in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, a party moving for summary judgment concedes the materiality of each fact enumerated in its separate statement and, as a consequence, cannot argue that the motion should be granted because one or more of these facts are not truly material. As the Nazir court noted, the facts enumerated in a moving separate statement have a due-process dimension in that they define for the opposing party the facts which, if disputed with admissible evidence, result in the motion being denied. (Id.) In reliance on the universe of facts in the moving separate statement, a party opposing a summary judgment motion is entitled to stop working on the opposition once (s)he has produced admissible evidence demonstrating that a single fact presents a triable issue.

In short, the Court finds that there are triable issues of material fact with respect to Defendants’ knowledge and the motion premised on the argument that they owed no

duty is denied.

Causation

Defendants also argue that Plaintiff cannot demonstrate a causal connection between any act or omission of Defendants and Plaintiff’s injury. To that end they argue that Plaintiff’s discovery responses indicated that Defendants breached the duty of care by failing to employ security guards and/or installing surveillance equipment and that Plaintiff cannot show through nonspeculative evidence that any failures in this regard were a substantial factor in causing his injuries.

“Negligent conduct is not a substantial factor in bringing about an injury if the harm would have occurred even if the defendant had not been negligent.” (Viner v. Sweet (2002) 30 Cal.4th 1232, 1239.) Plaintiff must show “by nonspeculative evidence, some actual causal link between the plaintiff’s injury and the defendant’s failure to provide adequate security measures.” (Saelzler v. Advanced Group (2001) 25 Cal.4th 763, 773 -774.) “[A] defendant cannot simply ‘argue’ that a plaintiff lacks sufficient evidence to establish causation, the defendant must make an affirmative ‘showing’ that the plaintiff cannot do so.” (Andrews v. Foster Wheeler, LLC (2006) 138 Cal.App.4th 96, 103 [emphasis in original].)

Here, the argument is premised on the same set of facts upon which the duty argument was made. Thus, even assuming that Defendants met their initial burden, given that the Court already found that Plaintiff disputed UMFs 25 and 26, the motion premised on causation must likewise be denied.

Given the above, the Court need not address Plaintiff’s opposition argument that Defendants failed to install a fence.

The motion for summary judgment is denied in its entirety.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Defendants’ counsel is ordered to notify Plaintiff’s counsel immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Plaintiff’s counsel appears without following the procedures set forth in Local Rule 1.06(B).

Plaintiff’s counsel shall submit an order pursuant to CRC 3.1312 and CCP § 437c.