2012-00120135-CU-PO

Leeanna Ramirez vs. South Sac, LLC

Nature of Proceeding: Motion for Summary Judgment

Filed By: Douglass, Michael C.

Defendants South Sac, LLC, 24 Hour Fitness USA, Inc., Shelter Bay Retail Group, and
Florin Associates, LLC’s (collectively “Moving Defendants”) motion for summary
judgment is denied. Defendants’ request for judicial notice is granted.

In this personal injury action, Plaintiff alleges that she was assaulted in the Florin
Towne Centre parking lot. She alleges that Moving Defendants failed to employ
adequate security measures to prevent the attack despite knowledge of criminal
activity in the area. Plaintiff alleges causes of action for premises liability against
South Sac, LLC (property owner) and Florin Associates, LLC (predecessor in interest);
for negligence against Shelter Bay Retail Group (property manager) and Securitas
Security Services (security guard company retained to patrol the property); and for
negligence against 24 Hour Fitness, USA (tenant on property).

Defendants’ separate statement includes the following. On August 3, 2011, at around
8:45 p.m., Plaintiff came to the subject property to pick up her then-fiancé Omar
Anguiano, a 24 Hour Fitness employee from work. Less than one minute passed from
the time Plaintiff drove her car into the parking lot and when she parked. Plaintiff sent
Anguiano a text message letting him know she was waiting for him in the car because
she did not feel well enough to go inside. Plaintiff was not a 24 Hour Fitness employee
and did not intend to enter the 24 Hour facility. Plaintiff had been parked for three
minutes when she noticed a man near the driver’s side of her vehicle. The man said
something to Plaintiff which she could not understand and she sent Anguiano a text
telling him a strange man was near her window. The man entered the car through the
unlocked back door and began punching Plaintiff. The man stabbed Plaintiff in the
abdomen and in the right arm. She screamed and honked the horn until he left.
Plaintiff estimated that the attack lasted two minutes. Plaintiff does not know how long
the man was on the property prior to the attack, from which direction he came, or
whether he interacted with anyone prior to the attack.

Defendants move for summary judgment on the basis that Plaintiff cannot prove
causation because she cannot prove that additional security measures would have
prevented the incident. A motion for summary judgment is appropriate if a defendant
can establish that plaintiff will not be able to prove causation. In order to prevail on
her claims, plaintiff must show that the proposed security measures would more likely
than not have prevented the attack. See Sandoval v. Bank of Am. (2002) 94
Cal.App.4th 1378, 1387; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763. In
Saelzer, for example, because plaintiff could not prove the identity of her assailants,
she was unable to show that her assailants were unauthorized to enter the premises.
Thus, plaintiff could not show that defendants’ failure to provide increased daytime
security at each entrance gate or functioning locked gates was a substantial factor in
causing her injuries, and there was no proper basis for shifting the burden of proof on
that issue to defendants.

Both Plaintiff and co-defendant Securitas Security Services have opposed the motion.

Here, the Court agrees with Plaintiff and Securitas that Moving Defendants failed to
meet their initial burden to show that Plaintiff cannot prove causation. “[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.” (
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Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4 96, 103 [emphasis in original].)
Defendants cite to cases involving situations where plaintiffs were injured by third
parties on defendants’ properties. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th

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763; Nola M. v. University of Southern California (1993) 16 Cal.App.4 421; Noble v.
Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912.) In those cases, the Court
determined that the plaintiffs could not demonstrates a causal link because they could
not demonstrate that additional security measures would have prevented the injuries
inflicted by the third party. Importantly, in each of those cases, the defendants
presented specific evidence of the security measures that they had in place. In
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Saelzer, supra, 25 Cal.4 at 770, the plaintiff was assaulted by three men loitering
near unlocked security gate during the day at apartment complex while attempting to
deliver package. The plaintiff was unable to identify the three men and they may have
been tenants authorized to enter the complex through the security gates. Defendants
presented evidence that they had night time security guards that arrived as early as
3:00 pm and sometimes had roving daytime guards and that the guards regularly
attempted to fix the locks and gates. They also presented evidence that the men who
assaulted the plaintiff could have been tenants with permission to enter the complex as
a gang was “headquartered” in one of the buildings and thus the plaintiff could not
show additional security measures such as additional guards at the security gates
would have prevented the attack. (Id. at 776.; see also Noble, supra, 168 Cal.App.3d
at 918 [in case involving parking lot assault after a baseball game, evidence showed
that defendants had 69 security guards in the entire facility]; Nola M., supra, 16 Cal.
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App.4 at 424 [in case involving an attack on the USC Campus, evidence at trial
showed USC’s “security department includes highly trained armed security officers and
unarmed community services officers. Each twenty-four-hour period is divided into
three shifts with a usual complement of five officers (one supervisor and four armed
officers) working each shift. At the beginning of each shift, there is a briefing to review
daily incident reports and previous watch summaries, after which each officer patrols
an assigned area”].)

Here, Moving Defendants have presented no evidence of any security measures that
were in place at the time of the subject incident. This is insufficient to show that
Plaintiff will be unable as a matter of law to prove causation based on her theory that
Moving Defendants failed to provide adequate security. In addition, evidence that
Plaintiff did not know where the assailant came from, how he accessed the property, or
who he was is also insufficient, again given the lack of evidence as to any security
measures in place at the time of the incident. Indeed, the plaintiff’s failure to identify
the assailants was relevant in Saelezler, given the defendants’ evidence that the three
men who assaulted the plaintiff could have been tenants with permission to enter the
complex through the unlocked security gates as a gang was “headquartered” in one of
the buildings and thus the plaintiff could not show additional security measures such
as additional guards at the security gates would have prevented the attack. Here,
again, Moving Defendants failed to establish what security measures they had in
place, and in any event, this case does not involve a situation where assailants may
have entered the subject property through security gates. Moving Defendants’ attempt
to avoid their evidentiary shortcomings in reply by citing to an allegation in Plaintiff’s
complaint that Defendant Shelter Bay Retail Group (property manager) employed
Securitas Security Services to provide security at the property is insufficient. First, this
was not presented in the separate statement and in any event, the allegation does not
contain any description of the specific security measures that were provided by
Security Services with respect to the subject 24 Hour Fitness facility. Simply stated,
Moving Defendants have failed to establish as a matter of law, that Plaintiff will be
unable to establish causation. On this basis alone Moving Defendants’ motion for
summary judgment is denied and the burden never shifted to Plaintiff to demonstrate
that existence of a triable issue of material fact. In any event, even if Moving Defendants met their initial burden, which they did not,
Plaintiff and Securitas have shown the existence of a triable issue of material fact.
“The question of causation is one of fact; it becomes a question of law only where
reasonable people do not dispute the absence of causation.” (Rosh v. Cave imaging
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Systems, Inc. (1994) 26 Cal.App.4 1225, 1235.) “It is also a question of fact when the
issue is whether the defendant’s negligence was a substantial factor in causing injuries
inflicted during a criminal attack by a third party.” (Id.)

In the instant case, the 24 Hour location at which Plaintiff was injured was located in a
high crime area. (Meyerdick depo 15:17-16:24; Hatfield Depo. 25:10-25, 26:16-20,
57:11-13] 24 Hour Fitness never hired and/or stationed a security guard inside, or at
the entrance or in the parking area in front of the facility even though it did so at other
facilities in high crime areas. (Hatfield Depo. 24:1-25:5, 26:16-20; Grey Depo. 31:20-
32:11; Meyerdick Depo. 24:10-25:7, 31:17-32:5) The subject 24 Hour facility was in a
much worse part of town than any other facility. (Meyerdick Depo. 13:23-14:2) Prior
to Plaintiff’s incident, Lauren Grey, the club manager spoke with the district manager
about club members feeling unsafe in the evening and recent car break-ins. (Grey
Depo. 30:3-10) When Ms. Grey was the manager at the Fulton and Hurley location,
that facility had an armed guard even though there was at least as much criminal
activity at the Florin location. (Grey Depo. 34:7-21, 35:2-9) There was a high
incidence of crime at the Florin location including fight in front of the facility, assault in
the parking lot, daily vehicle break-ins, and a gun found in a locker. (Meyerdick Depo.
15:17-16:24) The Laguna facility hired off duty police officers which reduced fights, car
break-ins and other dangerous behavior. (Hatfield Depo. 12:12-21, 14:24-15:10, 19:6-
20:1) The Florin facility was a known safety issue from the beginning but Florin never
had a security guard stationed at the entrance or in the parking area in front of the
facility at any time prior to the attack on Plaintiff. (Hatfield Depo. 25:10-25, 26:16-20,
57:11-13; Grey Depo. 31:20-32:11) Plaintiff was parked close to the subject 24 Hour
facility, had time to text her fiancé regarding the strange man near her vehicle and the
man only fled when she honked her car and screamed. (Plf’s Depo. 9:14-21, 61:24-
25, 64:16-19, 77:24-78:4, 79:8-10, 80:19-21, 82:6-8, 82:15-17.)

All of the above evidence leads to a reasonable inference that had Moving Defendants
employed a security guard at or near the entrance of the 24 Hour facility in this high
crime location, given Plaintiff’s proximity to the facility, Plaintiff would have had time to
alert the security guard to the assailant’s presence and given he fled when Plaintiff
honked and screamed, he would have been deterred by the security guard’s presence.
This evidence is sufficient to show a triable issue of fact on the issue of causation,
specifically, whether Moving Defendants’ failures to provide adequate security was a
substantial factor in the assailant attacking Plaintiff. Indeed it is not unlike the
evidence presented in a case where a convenience store cashier was attacked by a
patron and alleged that the defendant security service company was negligent when
the guard assigned to the store did not show up. The trial court improperly granted
summary judgment on the basis that the plaintiff could not show that the defendant’s
breach was the cause of the assault. The appellate court reversed holding the
question of causation was a question of fact and that it “is a reasonable inference that
the presence of an armed guard in close proximity to [the plaintiff] would have
prevented the assault. Whether the trier of fact will actually draw that inference is not
for us to say.” (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th
284, 292.) As a result, even if Moving Defendants shifted the burden to Plaintiff to
show the existence of a triable issue of material fact, which they did not, the motion
would still be denied because Plaintiff demonstrated the existence of a triable issue of fact.

Plaintiff’s counsel shall prepare an order pursuant to CCP § 437c(g)(1) and CRC Rule
3.1312.