Case Number: BC653454 Hearing Date: November 28, 2018 Dept: 4

Motion for Summary Judgment or, in the alternative, for Summary Adjudication

The court considered the moving and opposition papers.

Background

On March 6, 2017, plaintiff Edgar Lopez filed a complaint against defendants Crime Stoppers Services, Inc., Melash Inc. d/b/a Penthouse Lounge & Bar, Agustin Gomez, and Alejandro Marquez for (1) battery, (2) aiding and abetting battery, (3) negligent hiring, training, supervision, and retention, (4) negligence, and (5) premises liability, for injuries arising out of an alleged attack on Plaintiff by a third-party patron of the Penthouse Lounge & Bar. Plaintiff has alleged the third, fourth, and fifth causes of action against defendant Melash Inc. dba Penthouse Lounge & Bar, who now moves for summary judgment or, in the alternative, for summary adjudication on each cause of action.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Discussion

Defendant Melash Inc. dba Penthouse Lounge & Ba requests that the Court enter summary judgment in its favor and against Plaintiff pursuant to Code of Civil Procedure section 437c on the ground that there is no triable issue of material fact and defendant is therefore entitled to judgment as a matter of law. Specifically, Defendant contends that there is no triable issue of material fact because, with respect to Count Three – negligent hiring, training, supervision, and retention, there is no basis for liability because Defendant acted reasonably in its selection of Crime Stoppers Services, Inc. as a security company and was not responsible for hiring, training, supervising, or retaining Alejandro Marquez; regarding Count Four – negligence, there is no basis for liability against Defendant because it had no duty to provide heightened security measures beyond those already provided; and regarding Count Five – premises liability, neither Agustin Gomez nor Alejandro Marquez created a foreseeable dangerous condition at the premises. The Court addresses each cause of action in turn.

Count Three – Negligent Hiring, Training, Supervision, and Retention

“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565.) “‘A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless . . .’ . . . ‘The principal may be negligent because he has reason to know that the . . . agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor . . . .’” (Id. at p. 1565.)

Defendant hired Crime Stopper Services, Inc. to provide security guards at the Penthouse Lounge & Bar, and Defendant provides evidence that Crime Stoppers is a professional company specializing in commercial and special event security, is insured and certified by the state, and licensed as a private patrol operator. (UMF No. 4.) Defendant states that it did not know, and had no reason to believe, that Marquez was not properly licensed or trained, had a purported criminal history, or was unfit to serve as a security guard. (UMF Nos. 4, 19.) Defendant also contends that because Marquez was hired, trained, supervised, and retained by Crime Stoppers, it cannot be held liable. (UMF No. 7.) However, Defendant fails to present evidence that it engaged in its own research of Crime Stoppers or any of the guards at the location, and the Court therefore cannot determine there is no triable issue as to whether Defendant had no reason to know that Crime Stoppers or any of its employed guards were incompetent or unfit to provide those services. Instead, it simply relied on Crime Stoppers’ statements to that effect. Therefore, the burden does not shift to Plaintiff on this count, and there remains a triable issue of material fact regarding whether Defendant hired a security company and guards that were competent to perform such duties.

Defendant’s motion for summary adjudication as to count three is DENIED.

Count Four – Negligence and Count Five – Premises Liability

Defendant conflates its arguments and supporting facts on the fourth and fifth causes of action; therefore, this Court analyzes the two causes of action together.

The elements of a negligence claim are (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) The elements of a premises liability claim based on negligence are: (1) defendant owed a duty of care to plaintiff; (2) defendant breached that duty; and (3) the breach proximately caused injury and damages. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Ibid.) “A proprietor of premises is not the insurer of the safety of persons on those premises. His duty to control the acts of third persons is a duty of reasonable care to protect against known or reasonably foreseeable risks. He is not required to take precautions against attacks by third persons which he has no reason to anticipate. [Citation.]” (7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905.) “[T]he predicate of any duty to prevent criminal conduct is its foreseeability. Property owners have no duty to prevent unexpected and random crimes. . . . ‘[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.’ [Citation.]” (Nicole M. v. Sears, Roebuck & Co. (1999) 76 Cal.App.4th 1238, 1247.)

Defendant first argues that it had no duty to provide heightened security measures beyond those already provided, particularly because there is no evidence of prior similar incidents, it is undisputed that Defendant reasonably believed it hired a proper security company with qualified security guards, and Gomez’s attack on Plaintiff was not foreseeable to Plaintiff. First, as Defendant acknowledges, “[i]t is established that business proprietors such as shopping centers, restaurants, and bars owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an obligation to undertake ‘reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.’ [Citations.]” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229.) Defendant contends that it had no duty to provide additional security measures because the attack at issue in this matter was not foreseeable. Defendant largely relies on its contention that there were no prior similar incidents; however, Defendant provides no evidence to support this contention, and it is Defendant’s burden on summary judgment to set forth that no triable issue exists before the burden shifts to Plaintiff to establish a triable issue of material fact. While Defendant provides facts that Gomez did not have a history of fighting and there had not been fighting that night (UMF Nos. 10, 11), this does not establish that it was not foreseeable that anyone would get into a fight at the location or that there were no prior similar incidents. Plaintiff provides evidence that the location has had prior incidents, thereby prompting the hiring of security, because fights and arguments between patrons and security guards were foreseeable. (Pl.’s UMF Nos. 48, 51-53.) Additionally, as discussed ante, the Court finds that Defendant’s belief that it hired a proper security company with qualified guards was not reasonable because Defendant did not engage in its own research and instead simply relied on the averments made by the security company.

Therefore, there remains a triable issue of material fact regarding whether Defendant is liable for the foreseeable acts of a third party at its location.

Defendant’s motion for summary adjudication is DENIED as to counts four and five.

CONCLUSION

The motion for summary adjudication is DENIED as to each count alleged against Defendant. The motion for summary judgment is therefore also DENIED.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: November 27, 2018

_____________________________

Christopher Lui

Judge of the Superior Court