2011-00112139-CU-PO

Angel Zambrano vs. John Henke

Nature of Proceeding: Motion for Summary Judgment

Filed By: Berreth, Kevin J.

Defendant John Henke’s (“Henke”) motion for summary judgment is DENIED.

This is a consolidated wrongful death action that follows the deaths of Efrain
Zambrano (“Decedent Zambrano”) and Carlos A. Montes (“Decedent Montes”)
(collectively “Decedents”). The plaintiffs are Angel Zambrano, Maria Zambrano, Jorge
Zambrano (“Zambrano Plaintiffs”) and Carlos A. Montes, Jr., by and through his
guardian ad litem Esperanza Chavez (“Plaintiff Montes”) (collectively “Plaintiffs”).

Plaintiffs allege that Garcia rented a ballroom for his daughter’s quinceañera, where
alleged gang members shot and killed Decedents. Henke is and was sole owner of
the ballroom. Garcia contracted with Henke for, among other things, the provision of
private security during the event. Henke and others he hired acted as security guards
during the quinceañera. The shooter was utlimately convicted in criminal court of
Decedents’ murders. Plaintiffs contend that Henke is civilly liable for Decedents’
deaths because he failed to protect Decedents from the shooter, and because he
negligently hired, trained and supervised his security team.

Plaintiffs’ complaints each contain a single cause of action for wrongful death. “The
elements of the cause of action for wrongful death are the tort (negligence or other
wrongful act), the resulting death, and the damages, consisting of the pecuniary loss
suffered by the heirs.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 806
[citations omitted].) Henke argues that summary judgment is warranted because
Plaintiffs cannot establish that he was under any duty to protect them from the shooter.
Because the court disagrees, it denies the motion.

Duty

Usually, landowners are not under a duty to protect others against third-party criminal
conduct absent a high degree of foreseeability, which is rarely present absent prior,
similar criminal acts on the premises. (See Delgado v. Trax Bar & Grill (2005) 36
Cal.4th 224, 238.) Where the landowner elects to provide security services at the
premises, however, the duty to protect has been assumed, and the issue of
th
foreseeability is irrelevant. (Mata v. Mata (2003) 105 Cal.App.4 1121, 1128.)

“A security guard is in a special relationship with the customers of the
business that hired the guard. This special relationship imposes on the
guard the obligation to act affirmatively to protect customers while on the
premises. The security guard is liable to an injured customer when the
guard fails to act reasonably and that failure causes injury. The business,
in turn, may be liable for failing to hire a competent security guard.
[Citations.] Having assumed the duty to protect one’s patrons while on
the premises of a business establishment, the proprietor will be liable if
the guard acts unreasonably. [Citation.].) Moreover, the proprietor will be
directly liable when he or she negligently hires or retains an incompetent
employee [citation]) or negligently trains [citation] or supervises [citation]
the employee. Under these circumstances, the injured patron need
not prove the proprietor had notice of prior similar acts. [Citation.]”
(Id. at 1128-1129 [citations omitted] [emphasis added].)

Here, it is undisputed that Henke personally provided security services on the night in
question and employed others to provide security as well. (Undisputed Material Facts
3, 6.) Consequently, Henke’s argument that he was under no duty to protect because
the shooter’s criminal conduct was unforeseeable is unavailing. Accordingly, Henke is
not entitled to summary judgment on grounds that he owed Decedents no duty to
protect.

Breach

Preliminarily, the court questions whether Henke genuinely raised the issue of breach
in his moving papers. (See Moving Memo. at 2:16-19 [Henke owed no duty]; id. at
5:22-23 [“Here, HENKE contends that the criminal actions of TAFOYA were not
foreseeable and therefore no duty was owed”]; id. at 6:1-4 [no foreseeability, therefore
no duty].) Furthermore, Henke’s legal analysis in the moving papers appears to be
limited to the issue of duty, and there is no reference to breach in the Reply.

Nonetheless, the Moving Memorandum of Points and Authorities contains a single
reference to the absence of any breach as an alternative predicate for the motion. (See Moving Memo. at 4:24-26.) Moreover, Plaintiff Montes averts to the issue of
breach (and causation) in the Opposition. Because Plaintiff Montes addressed the
issue of breach, the court will address it as well.

Whether one owing a duty of care breached the duty or acted reasonably under the
circumstances are generally questions for the fact-finder. (See Barber v. Chang
(2007) 151 Cal.App.4th 1456, 1463 [citation omitted].) To meet his initial burden of
production in the instant motion, Henke was required to produce evidence precluding
reasonable inferences that he either personally failed to act reasonably vis-à-vis the
shooter or that he failed reasonably to hire, train and supervise the other members on
his security team. (See Zambrano Compl., ¶ VII [alleging Henke negligently failed to
hire, train and supervise]; Montes Compl., ¶ 7 [same].)

Henke has not produced any evidence pertaining to the hiring, training or supervision
of members of his security team. As a consequence, he has failed to produce
evidence demonstrating the nonexistence of a triable issue of material fact, and he is
not entitled to judgment based on issue of breach.

Henke’s objections to evidence are SUSTAINED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.

Counsel are advised that the Sacramento County Superior Court’s Local Rules were
revised and renumbered as of 01/01/13. When giving notice of the court’s tentative
ruling system, counsel should cite Local Rule 1.06, not former Local Rule 3.04.