Case Number: BC501229    Hearing Date: July 15, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SILVIA ESTRADA,
Plaintiff(s),
vs.

MARIA DELALUZ SANTIAGO, ET AL.,

Defendant(s).

CASE NO: BC501229

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #28
July 15, 2014

Defendants’ Motion for Summary Judgment is Denied.

1. Background Facts
Plaintiff, Silvia Estrada filed this action against Defendants, Maria de la Cruz Santiago, Jesus Alcala, Marisqueria El Tejado, and Moises Uribe for injuries sustained in a gunshot incident. Plaintiff alleges she was a patron at Marisqueria El Tejado, owned by Santiago and Alcala, when a patron fired a gun into the restaurant and caused her injuries.

2. Motion for Summary Judgment
At this time, Defendants, Jesus Alcala and Maria Santiago, individually and dba Marisqueria el Tejado, move for summary judgment on the complaint. Defendants move for summary judgment on two grounds: (a) the act of the gunman was not foreseeable, and (b) nothing Defendants did (or failed to do) was a substantial factor in bringing about Plaintiff’s injury.

a. Evidentiary Objections
Defendants filed evidentiary objections with their reply papers. The objections are not in the proper form required by CRC 3.1354. For example, Defendants list their first objection, but it is directed at portions of eight different paragraphs of the Declaration of Lamm. Further complicating the matter, it is not clear whether Defendants object to the entirety of those paragraphs, or only to the portion of those paragraphs explicitly set forth in the objections, as Defendants use “…” at the end of each objection. The objections are therefore overruled.

b. Initial Note
Neither Defendants nor Plaintiff filed a separate statement in the format required by CRC 3.1350(h). Defendants’ separate statement is not proper because it uses more than the left side of the page. Plaintiff’s separate statement is not proper because it often refers to the memorandum of points and authorities as evidence and/or other facts in the separate statement, as opposed to the actual evidence at issue.

Additionally, Plaintiff failed to highlight the deposition testimony she contends is relevant to the opposition, as required by CRC 3.1116(c).

The Court has considered the papers despite these defects, but asks the parties to be sure to comply with all Rules of Court in the future in connection with this action.

c. Foreseeability
Defendants’ first argument is that the act of the gunman was not foreseeable. It is well settled that landowners owe a duty to tenants and invitees to maintain their premises in a reasonably safe condition. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189 [disapproved on another ground].) This duty encompasses a responsibility ¿to take reasonable steps¿ to secure the premises against ¿foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.¿ (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) Foreseeability in this context is a question of law for the court. (Id. at p. 678.) In analyzing the existence and scope of a landowner’s duty, the court must balance the foreseeability of the harm alleged against the burden of the duty to be imposed-the greater the burden of preventing the harm, the higher the degree of foreseeability required. (Sharon P., supra, at p. 1195.) Because the burden of employing private guards to protect against third party criminal conduct is great, ¿a high degree of foreseeability is required in order to find that the scope of a landlord¿s duty of care includes the hiring of security guards…. [T]he 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.¿ (Ann M., supra, at p. 679.)

In support of their motion, Defendants provide facts 1-12 of the separate statement. These facts establish that Plaintiff was injured on 3/06/11 on the premises of Defendants’ restaurant, which was a family restaurant that sometimes offered entertainment; Plaintiff was a member of a musical group performing on the night of the incident. Prior to the incident, some of the customers had become unruly and were asked to leave by one of the security guards. The individual defendants did not know of any threat made by the individuals, and there had been no prior incidents of violence at the restaurant during the time the current owners owned the establishment. The restaurant had surveillance cameras operating on the evening of the incident. The identity of the person who shot into the restaurant later that evening is not known. Plaintiff has no first-hand knowledge of threats that were made on the evening of the incident, and is not certain that it was one of the persons who had been escorted out of the restaurant previously.

The essential issue before the Court is this: there is evidence that there was an issue with some patrons prior to the actual incident. Is that evidence sufficient to render the actual shooting foreseeable?

Moises Uribe was one of the security guards on the night in question. Uribe testified, at page 13 of his deposition, that pepper spray was used on the patrons, and that one of the patrons stated, “That’s my barrio. You’re going to face consequences. I’m going to use an AK-47.” On page 14, Uribe testified that the security guards pulled their guns, and the individual left; thereafter, the security guards stayed behind a car for a half an hour with their guns pulled in case the individuals returned. At pages 19-20, Uribe testified that he didn’t believe the individuals would come back, as they didn’t look like “Cholos,” but instead like “ordinary people,” and after a half an hour the guards went back inside. At page 21 he testified that he would have called the police if he believed the individual had a weapon, but he did not see one and did not believe he would return. At page 29, Uribe testified that he did not see the person who came back an hour after the initial incident, but he believes the individual was related to the group, as it is only logical that the individual was related. At page 28, Uribe testified that someone came back an hour later and told the parking attending to “move aside or you’re dead.” At page 41, Uribe testified that someone came back with a revolver and wounded Plaintiff.

Defendants argue the foregoing is insufficient to render the shooting foreseeable, as Uribe did not actually recognize the shooter, and nobody has identified the shooter. Defendants therefore contend it is impossible to conclude that the shooter was part of the group with whom there was an altercation earlier, and it was not foreseeable that some random person would come and shoot at the restaurant.

Pure speculation cannot form the basis for denial of a motion for summary judgment. Reasonable inferences from the evidence, however, can be drawn, and a motion for summary judgment must be denied if the reasonable inference from the evidence raises a triable issue of material fact. See CCP §437c(c); Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161. The Court agrees with Uribe’s testimony during the deposition – it is logical and reasonable to believe that, in a restaurant with no prior history of crime, the person who came and shot at the restaurant was the same person, or related to the same person, who threatened to do so about an hour earlier. The fact that the security guards took cover for a half an hour after the initial altercation could lead a reasonable juror to believe that the threat was real, and was ultimately carried out.

The motion for summary judgment on the ground that the shooting was not foreseeable is premised entirely on the argument that the shooter has not been identified. The motion is denied, as the reasonable inferences from the evidence are to the contrary. Notably, Defendants also argue that the mere act of hiring security guards does not mean that a crime is foreseeable; this is a correct statement of the law, but is not relevant to the analysis of the instant motion.

d. Causation
Defendants’ second argument is that Plaintiff cannot prove that something Defendants did, or failed to do, was a substantial factor in bringing about her injury.

To prevail in a case involving third party criminal conduct, the plaintiff must show that the defendant owed him a legal duty of care, breached that duty, and the breach was a proximate or legal cause of his injury. In other words, even assuming that the defendant owed and breached a duty of care to the plaintiff, he cannot prevail unless he shows that the breach bore a causal connection to his injury. Abstract negligence, without proof of a causal connection between the defendant¿s breach and the plaintiff¿s injury, is insufficient. To demonstrate actual or legal causation, the plaintiff must show that the defendant¿s act or omission was a ¿substantial factor¿ in bringing about the injury. Plaintiff must do more than speculate through the testimony of experts as to the extent and worth of the defendant¿s security measures and, instead, must show that the injury was actually caused by the failure to provide greater measures. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772-774.)

Plaintiff’s main contention in this action is that Defendants should have called the police after the initial altercation. Plaintiff provides evidence, in the form of the Expert Declaration of Bruce Lamm, that the police would have responded to a call reporting the threat. See Declaration of Lamm, ¶16, referencing the deposition testimony of Detective Garcia. Lamm also opines that at least one armed security guard should have remained on the look-out for the individuals to return for more than a half an hour. ¶20. The Court finds the foregoing testimony is sufficient to raise a triable issue of material fact concerning whether Defendants’ failure to act caused or contributed to Plaintiff’s injuries.

Notably, Plaintiff makes much of the fact that the subject establishment was prohibited from hosting live music, and Plaintiff was a musician performing at the restaurant at the time of the shooting. Plaintiff argues that, had Defendants obeyed the restrictions on live music, she would not have been there, and therefore would not have been shot. As Defendants correctly note in moving papers, and Plaintiff fails to rebut in opposition, the live music issue is a red herring; the ordinances prohibiting live music are noise ordinances, meant to protect neighbors from a nuisance. The statutes are not meant to protect against criminal behavior, and Plaintiff failed to tie the presence of live music to the criminal behavior at issue.

e. Conclusion
There are triable issues of material fact concerning both foreseeability and causation. The motion for summary judgment is therefore denied.

Dated this 15th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court