Case Name: Charles Dennis, et al. v. Live Nation Worldwide, et al.
Case No.: 2015-1-CV-280456 (lead case)

These two consolidated actions arise from an August 22, 2014 incident during which Eric Johnson, Jr. (“Decedent”) was shot and killed after a concert (the “Under the Influence” tour featuring several artists) held at Shoreline Amphitheatre (“Shoreline”). Decedent worked in the music industry and was backstage discussing arrangements for one of the performers, “Young Jeezy” (Defendant Jay Wayne Jenkins), to appear at an after-party in San Jose later that night when he was attacked, chased into a backstage parking lot and shot several times. The shooter has never been identified, much less apprehended.

In case no. 2015-1-CV-280456 (“Dennis Action”), Decedent’s three children (two of whom are minors suing via their mother and guardian ad litem Ria Cotton) filed an action originally against Defendant Live Nation Worldwide, Inc. (“Live Nation”), which operated and managed Shoreline, and Does 1-15 only. Their now operative Second Amended Complaint (“Dennis SAC,” filed October 6, 2017) states claims for 1) Negligence; 2) Premises Liability, and; 3) Wrongful Death against several defendants, including Live Nation and NPB Companies, Inc. The SAC at ¶10 names Decedent’s mother and father, Roseanna Robinson and Eric Johnson, Sr. as “nominal” Defendants pursuant to CCP §382. As a nominal defendant in the Dennis Action Eric Johnson Sr. filed a (form) Cross-Complaint on August 3, 3015 purporting to state two causes of action: 1) Declaratory Relief re: “entitlement of damages arising from [] wrongful death,” and 2) an incorporation of the Dennis’ Plaintiffs original complaint, against Live Nation.

In case no. 2015-1-CV-282859 (“Robinson Action”) Plaintiff Roseanna Robinson, Decedent’s mother and administrator of his estate, filed her own action against Live Nation, Shoreline Amphitheatre Ltd., Jay Wayne Jenkins (“Jenkins”), the City of Mountain View, and various other individuals. The original and still operative Complaint in the Robinson Action filed July 9, 2015 asserts causes of action for 1) Negligence; 2) Negligent Hiring, Supervision and Retention; 3) Premises Liability; 4) Battery (alleging on information and belief that “one or more” of the individual defendants fired a gun at Decedent); 5) Assault (alleging on information and belief that “one or more” of the individual defendants fired a handgun at Decedent); 6) Public Entity Liability (against the City of Mountain View), and; 7) Breach of Oral Contract (against Jenkins). Only the first three causes of action in the Robinson Action are alleged against Live Nation and Shoreline.

The two actions were consolidated by order of the Court on February 11, 2016. Currently before the Court are two motions, a motion for summary judgment by Defendants Live Nation & Shoreline against all three pleadings (the Dennis SAC, the Johnson Cross-Complaint and the Robinson Complaint), and a motion for summary judgment/adjudication by Defendant NPB against the Dennis SAC.

As an initial matter the motion for summary judgment by Defendant NPB is GRANTED as it is unopposed.

What remains for consideration is the motion for summary judgment by Defendants Live Nation & Shoreline (hereafter “Defendants”) directed at the claims alleged against them in all three pleadings, the Dennis SAC, the Robinson Complaint and the Johnson Cross-Complaint (which is wholly dependent upon the Dennis SAC).

Requests for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Both sides have submitted timely requests for judicial notice. Plaintiffs also submitted an additional untimely request for judicial notice, along with an untimely and unauthorized “supplemental” separate statement and an untimely opposing declaration, all three filed on March 27, 2019, the day after the deadline for filing papers in opposition to the MSJs set for hearing on April 9. Code of Civil Procedure (“CCP) §437c does not authorize the filing of “supplemental” separate statements and all papers in opposition to the motions set for hearing on April 9 had to be filed by no later than March 26, 2019. The three untimely and unauthorized documents have not been considered. “A trial court has broad discretion to under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765, emphasis added.). CCP §437c(b)(2) “forbids the filing of any opposition papers less than 14 days prior to the scheduled hearing, and case law has been strict in requiring good cause to be shown before late filed [opposition] papers will be accepted” in a summary judgment proceeding. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on another point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) The court of appeal in Bozzi also noted that where the moving parties “followed all the rules and were entitled to expect the trial court to enforce them,” and “[opposing party] did not invoke any of the available procedures to obtain a court order permitting [them] to file late papers,” it could not “find any reason to conclude [that] the trial court abused its discretion,” in refusing to consider the late opposition papers. (Bozzi, supra, at p. 165.)

1) Defendants’ Request
Defendants ask the Court to take notice of four documents (submitted as exhibits 5 and 8-10 to the “Evidence in Support” of the motion). Exhibit 5 is a copy of the autopsy report on Decedent prepared by the Santa Clara County Medical Examiner-Coroner’s office (Plaintiffs also request judicial notice of a copy of this report). Notice is GRANTED pursuant to Evidence Code §452(c) (official act) only as §452(h) is inapplicable. The report cannot be noticed as to the truth of its findings as judicial notice is a substitute for proof. Exhibits 8-10 are simply copies of the operative pleadings (the Dennis SAC, the Robinson Complaint and the Johnson Sr. Cross-Complaint). Notice of the pleadings is unnecessary as the Court already considers the operative pleadings in ruling on a motion for summary judgment. That said the request is GRANTED pursuant to Evidence Code §452(d) (court records). The pleadings can only be noticed as to their existence and filing dates and not as to the truth of their contents.

2) Plaintiffs’ Request
In their timely request Plaintiffs ask for judicial notice of eight documents, attached to the request as exhibits 1 and 3-9. Exhibits 1, 6 and 7 are additional copies of Plaintiffs’ pleadings (with the original Dennis complaint submitted rather than the operative SAC). While the original Dennis complaint is no longer relevant the request is GRANTED as to all three pleadings pursuant to §452(d), but only as to their existence and filing dates. Exhibit 3 is a copy of a letter from the City of Mountain View to counsel for Plaintiff Roseanna Robinson. Judicial Notice of the letter is DENIED as it has no relevance to Defendants’ motion, particularly in light of Roseanna Robinson’s dismissal of her claims against the City of Mountain View on March 26, 2019. Exhibit 4 is another copy of the Santa Clara County Medical Examiner-Coroner’s report. Notice of this document is again GRANTED pursuant to §452(c) only, and notice is not taken of the truth of its findings. Exhibit 5 is a copy of another report from the Santa Clara County Medical Examiner-Coroner’s office, a “Report of Investigation.” Notice of the Report is GRANTED pursuant to §452(c), but again the truth of the report’s findings cannot be judicially noticed. Exhibit 8 is an unauthenticated copy of printout from www.mercurynews.com, apparently of an article dated June 4, 2009 regarding violence (“stabbings and fights”) at a concert at Shoreline Amphitheatre. Judicial notice of the printout is DENIED as Plaintiffs have failed to identify any basis for taking of its existence or the truth of its contents. (See Evidence Code §450 [“Judicial notice may not be taken of any matter unless authorized or required by law.”]) Exhibit 9 is a copy of a one page document (again unauthenticated) that is identified by Plaintiffs as listing two sections of a City of Mountain View Ordinance. Notice of the document is GRANTED pursuant to Evidence Code §452(b) (regulations of a public entity) solely because the Court on its own has been able to confirm that the document accurately reflects the language of the City of Mountain View Ordinance sections.

Counsel are reminded that pursuant to Evidence Code §453(b) a party seeking judicial notice must “furnish[] the court with sufficient information to enable it to take judicial notice of the matter.”

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Defendants’ Motion for Summary Judgment
The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The moving party may generally not rely on additional evidence filed with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (See College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720.)

An opposing party will sometimes rely on circumstantial evidence and/or inferences arising from declarations or other evidence. To defeat summary judgment such inferences must be reasonable and cannot be based on speculation or surmise. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material triable controversy is not established unless the inference is reasonable.”]) Moreover, the inference a plaintiff attempts to rely on must satisfy the “more likely than not” evidentiary standard plaintiff will bear at trial. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487.)

Defendants move for summary judgment in part on the basis that Plaintiffs “cannot establish as a matter of law that Defendants owed a duty of care to ensure Decedent’s safety against the unprecedented and unforeseeable homicidal acts of an unknown assailant.” (Defendants’ Memo. of Points & Authorities at p. 2:7-9.) They are correct and the motion for summary judgment is GRANTED on that basis.

“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.) “The issue of whether a legal duty exists is an issue of law, not an issue of fact for the jury.” (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

California law treats “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, internal citations omitted.) “In each case . . . the existence and scope of a property owner’s duty to protect against third party crime is a question of law for the court to resolve.” (Casteneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) “In assessing whether the facts show ‘heightened foreseeability’ of third party crimes, our precedents have focused on whether there were prior similar incidents from which the property owner could have predicted the third party crime would likely occur, though we have recognized the possibility that ‘other indications of a reasonably foreseeable risk of violent criminal assaults’ could play the same role. (Id. at pp. 1220-1221; See also Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1207-1212 [stating that “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”; also stating that “[f]oreseeability is the crucial factor in determining the existence of this duty”; and that “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises”]; Melton v. Boustred (2010) 183 Cal.App.4th 521, 536-538 [stating “ ‘[i]n the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner’ for the resulting harm. . . . When the court engages ‘in any analysis of foreseeability, the emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware.’”; also stating that “in cases involving liability for third party criminal conduct, ‘the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents.’ . . . Common sense is not the standard for determining duty. Nor is hindsight.”])

Defendants have met their initial burden to establish through admissible evidence that the shooting of Decedent in the backstage area of the Shoreline Amphitheatre was not reasonably foreseeable and they therefore owed no duty to prevent the third party criminal attack on Decedent. The declaration of Ilene Mills stating that there had been no prior homicides “or similar acts of violence” at Shoreline “including backstage” since at least 2001 when Mills began working there, and the deposition testimony of Michael Bernal (Defense exhibits 1 & 2) stating that the venue had not had problems with prior Wiz Khalifa shows, that the “Hot Wash Reports” from other Live Nation venues he reviewed did not contain any reports of weapons at prior shows for the “Under the Influence Tour” or report that any of the artists on the tour had posed any type of danger, and that the Mountain View police department did not inform him of any reports of violence at prior shows for the tour are sufficient to meet Defendants’ initial burden on reasonable foreseeability.

When the burden shifts to Plaintiffs they are unable to raise a triable issue of material fact as to the reasonable foreseeability of the backstage shooting. Plaintiffs present no evidence of prior similar incidents that would make a shooting in the backstage area reasonably foreseeable. Even if it is assumed for purposes of argument that judicial notice could be taken of the truth of the contents of the unauthenticated printout out of what was apparently a June 4, 2009 Mercury News article submitted by Plaintiffs (as exhibit 8 to their request for judicial notice), evidence of stabbings in the audience during a concert five years prior to Decedent’s murder is not sufficiently similar to a shooting in the backstage area after a concert to make such a shooting by an unidentified third party reasonably foreseeable under the controlling authority. Neither is the testimony that a few hours before the shooting there were verbal arguments, shoving, etc., between individuals apparently associated with the tour. (See Exhibits M and Q to the declaration of Plaintiffs’ Counsel Ashkahn Mohamadi.) Plaintiffs do not dispute that the shooter’s identity is unknown (see Defense UMF 46, undisputed by Plaintiffs). They have presented no evidence establishing where the shooter entered the premises, when he entered the premises or even if he entered carrying the gun that was used to kill Decedent.

Plaintiffs also cannot raise any triable issues as to the reasonable foreseeability of the third party criminal attack by submitting the declaration of “public assembly risk management professional” Gil Fried. In Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 the California Supreme Court held that even if the existence and breach of a duty of care were presumed, without evidence that the defendant’s act or omission caused or substantially contributed to the injury, summary judgment had to be granted because property owners cannot be made the insurers of the absolute safety of anyone on their property. “[T]he plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiff’s injury and the defendant’s failure to provide adequate security measures.” (25 Cal.4th at p. 774). It further stated that “expert opinion resting solely on speculation and surmise is inadequate to survive summary judgment,” and that “when the matter remains one of pure speculation or conjecture, or the probabilities are at the best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Id. at pp. 775-776.) The Court concluded that “[t]he evidence . . . merely shows the speculative possibility that additional daytime security guards and/or functioning security gates might have prevented the assault. Plaintiff’s evidence is no less speculative because she offered a security expert’s testimony. Because he was equally unaware of the assailants’ identities, his opinion regarding causation is simply too tenuous to create a triable issue whether the absence of security guards or functioning gates was a substantial factor in plaintiff’s assault.” (25 Cal.4th at p. 781, emphasis added; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [stating that “responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact”]; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890 [stating same]; see also Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1525 [stating that “speculative inferences do not raise a triable issue of fact”]; see also Griffin v. Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 507 [stating that “this testimony about what ‘could be’ is too speculative to create a triable issue of any increased risk of harm… [s]peculative possibilities are not substantial evidence”].)

Mr. Fried has no knowledge of who shot Decedent, when, where or how that person entered the premises or when or how the gun used to shoot Decedent was brought onto the property. Therefore the opinions expressed in his declaration are too speculative to raise a triable issue of material fact as to the reasonable foreseeability of the shooting or to establish that any particular security measure would have prevented the shooting.

Where Defendants have met their burden to show that the third party criminal act was not reasonably foreseeable and that they therefore had no duty of care to protect Decedent (or anyone else) from it, Plaintiffs cannot raise triable issues of material fact by asserting that Defendants were negligent in other ways, such as in the hiring or training of security staff, etc. “[P]laintiffs cannot attempt to circumvent governing decisional law about a commercial enterprise’s liability for criminal acts by recasting their claim in some other sub-theory of negligence. The dispositive issue remains the foreseeability of the criminal act. Absent foreseeability of the particular criminal conduct, there is no duty to protect the plaintiffs from that particular type of harm.” (Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal.App.4th at 1212.)

The Court is aware that both sides have submitted evidentiary objections. Plaintiffs’ objections, which comply with Rule of Court 3.1354 and are accompanied by the required proposed order, are overruled. Defendants’ objections do not comply with Rule of Court 3.1354 and will not be ruled on. The rule requires the filing of two documents, evidentiary objections and a separate proposed order on the objections, and both must be in one of the two approved formats set forth in the Rule. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)