Case Number: BC667590 Hearing Date: February 08, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT EQUITY RESIDENTIAL MANAGEMENT, LLC’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; GRANTED

I. INTRODUCTION

On July 6, 2017, Plaintiff Eron Wilson (“Plaintiff”) filed this action against Defendants ERP Operating Limited Partnership and Equity Residential Management, LLC (“Defendant”) for assault, battery, and negligence relating to an August 2, 2015 attack by unknown assailants. Defendant moves for summary judgment, or in the alternative, summary adjudication on grounds it did not breach any duty owed to Plaintiff.

II. FACTUAL BACKGROUND

Pegasus Apartments is a thirteen floor apartment building. (Undisputed Material Fact “UMF” No. 5.) Residents enter the lobby by using a key fob or by entering a code. (UMF No. 7.) Defendant hired a private security company, Star Alliance, to provide a security guard at the time of the incident. (UMF No. 8.) The security guard patrols the building, assists residents, takes packages, and assists with parking when the valet closes at 11 p.m. (UMF Nos. 9-15.)

On August 2, 2015 at approximately 3:40 a.m., Plaintiff could not sleep. He took the elevator downstairs to go outside and smoke a cigarette. (UMF Nos. 17, 18.) Plaintiff noticed a woman attempting to enter the lobby. (UMF No. 21.) The woman was with a group of about seven or eight others who were still outside. (UMF No. 22.) Plaintiff went outside briefly and then back inside the lobby. (UMF Nos. 26-27.) Inside the lobby, a confrontation began between Plaintiff and another man. Plaintiff punched the man twice in the face. (UMF No. 32.) Another man then came up to Plaintiff and attempted to choke him. (UMF No. 33.) The security guard, David Rosas, was in the parking lot at the time the fight broke out. (UMF No. 37.) Rosas responded to the fight and told the men holding Plaintiff down to let him go, and they complied. (UMF Nos. 38-40.) Rosas then called 9-1-1. (UMF No. 42.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he 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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections

Objection Nos. 1-4 are SUSTAINED as to authenticity. Defendant did not authenticate the surveillance video or stills from the video. However, Plaintiff’s opposition and separate statement rely on the surveillance video for the assertion that the security guard watched the fight without stopping the assailants. Without the video, Plaintiff has no evidence upon which to base that assertion.

Objections Nos. 5-9 are OVERRULED.

Objection No. 10 is SUSTAINED as to hearsay.

Defendant’s Evidentiary Objections

Objection No. 1 is OVERRULED. This objection does not relate to this case.

V. DISCUSSION

As framed by the Complaint, Plaintiff alleges Defendant failed in its obligation to provide secure premises and to ensure there was adequate security on the property. (Complaint, ¶ 23.) Plaintiff alleges Defendants and the security guard failed to carry out their duties in protecting Plaintiff from the assailants while the assault was being carried out in front of him and he failed to render aid in any way shape or form. (Complaint, ¶ 24.)

The elements of negligence and premises liability are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Further, “the law of negligence in the landlord-tenant context has evolved to impose a duty of reasonable care on the owner of an apartment building to protect its tenants from foreseeable third party criminal assaults.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 280.) While “the modern landlord has a duty to take reasonable precautions against foreseeable criminal acts, courts have been careful to avoid imposing standards of conduct which would effectively hold the landlord liable for all crimes committed on the premises.” (Resenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1095.) Recent decisions “have linked the level of security the landlord must provide to the degree of foreseeability of the harm.” (Ibid.) The foreseeability of harm determines the scope of a landowner’s duty, and “[t]he more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it.” (Vasquez, supra, 118 Cal.App.4th 269, 285.)

“[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.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 238.) To hold otherwise would force landlord to become insurers of public safety, which is contrary to well-established policy. (Ibid.) When “foreseeability gives rise to a duty to protect, it is for the fact finder to determine the ‘adequacy’ of the security or measures taken to prevent injury.” (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 915.) However, this determination cannot “be made absent evidence that some action on the part of the defendant could have prevented the injury or conversely that the defendants’ inaction in some manner caused plaintiff’s injury.” (Ibid.)

Defendant argues it breached no duty to plaintiff because immediate harm was not foreseeable. Defendant contends because Rosas had no indication a fight would occur, he had no duty to do anything before he had knowledge of the fight. Before a defendant can be held liable for the criminal acts of a thirty party, a heightened test of foreseeability is applied. (Margaret W. v. Kelley R. (2006) 138 Cal.App.4th 141, 154.) For example, in Delgado, supra, the bouncer at a bar knew a fight was imminent because he had been warned by the victim’s girlfriend that a fight would take place and he witnessed the hostility between plaintiff the assailant himself. However, the bouncer took no precautionary measures to protect plaintiff. This was a breach of duty. (Delgado, supra, 36 Cal.4th at p. 248.)

In contrast, in Marois v. Royal Investigations (1984) 162 Cal.App.3d 193, an assailant attempted to use the restroom at a fast food restaurant. The security guards sent him away. The assailant began vandalizing a kiosk outside the restaurant. The plaintiff and his friend approached the assailant, who first attacked plaintiff’s friend, then charged at plaintiff with a baseball bat. The court concluded that “[a]s a matter of law,” a reasonable jury could not find the guards were negligent before the assailant began vandalizing the kiosk because there was no apparent risk of immediate physical injury.” (Id. at pp. 200-201.) Here, there was no indication that an attack was imminent and no facts suggest Rosas was aware a fight would occur. Plaintiff does not dispute Rosas was not present when the fight broke out. (Plaintiff’s Separate Statement at p. 8 [stating guard appeared on the scene after the fight had begun]; Rosas Decl., ¶ 3.) Nor does Plaintiff dispute that when Rosas became aware that the fight had broken out, he immediately responded and told the individuals holding Plaintiff down to stop, which they did. (Plaintiff’s Separate Statement at p. 10; Rosas Decl., ¶¶ 3, 4.) Rosas then called 911. (Rosas Decl., ¶ 6.)

In addition, Defendant argues no act or omission by it caused Plaintiff’s injuries. Absent some evidence of reasonable precautions Defendants could have taken which more likely than not would have prevented Plaintiff’s injuries, general allegations of a failure to deter criminal conduct are too speculative to prove causation. “‘[A] tenant’s negligence action against her landlord for injuries resulting from the criminal assault of a third person must be supported by evidence establishing that it was more probable than not that, but for the landlord’s negligence, the assault would not have occurred.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775; see also Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.)

For example, in Thai v. Stang (1989) 214 Cal.App.3d 1264, the plaintiff was the unintended victim of a drive-by shooting. The plaintiff argued the landowner’s failure to provide an unarmed security guard was a proximate cause of his injuries. Summary judgment in favor of the landowner was affirmed because “there is not a close causal nexus between [defendant’s] purported nonfeasance and [plaintiff’s] injuries. Given the random nature of drive-by shootings, which makes them difficult to police against, we do not discern how [defendant] could have prevented [plaintiff’s] injuries.” (Id. at p. 1273.) Similarly, in Noble, the court found the direct cause of plaintiff’s injury was the conduct of the person or persons who assaulted plaintiff and there was no evidence the defendant landowners had actual knowledge of the conduct of the assailants or of their presence on the premises. (Noble, supra, 168 Cal.App.3d at p. 917.) Therefore, causation could not be established under plaintiff’s theory that defendants were negligent in failing to effectively deter anyone and everyone from acting in such a manner. (Ibid.)

Likewise, here any argument that Defendant or Rosas could have done something to prevent the fight is too speculative to establish causation. As explained, there was no indication that a fight was imminent. Rosas was not present when the fight began. Saying that the hiring of an additional security guard would more likely than not have prevented the fight is speculation.

Defendant has met its initial burden of showing the fight was not foreseeable and therefore, Defendant owed no duty to prevent it. Defendant also met its initial burden of showing no act or omission by it caused Plaintiff’s injuries. The burden shifts to Plaintiff to show a triable issue of fact exists.

Plaintiff argues that once Defendant voluntarily assumed the duty to provide security, Defendant should have hired more security guards so that one guard did not need to cover both the lobby and the parking lot. Plaintiff cites to Rosas’s bad vision and heart disease, as well as call records for emergency services and arrests in the area, as evidence that the security was inadequate to meet the needs of the “high crime” area. Further, Plaintiff contends Rosas “just stood there” and watched the fight happening and failed to take measures to break up the fight. As noted above, Plaintiff bases this last assertion on the surveillance video Plaintiff says is unauthenticated.

Plaintiff relies on Mata v. Mata (2003) 105 Cal.App.4th 1121, where a bar positioned a security guard at a door to check for weapons and to eject unruly customers. One previously banned customer returned and after being told to leave a second time, began firing gunshots through the front door. (Id. at pp. 1125-1127.) The court stated that the duty to protect had already been assumed and therefore the issue of foreseeability became irrelevant. (Id. at p. 1128.) Based on this, Plaintiff contends the issue is not foreseeability, but rather the reasonableness of hiring one ill-equipped security guard in a “high crime area.” But the Supreme Court in Delgado, supra, 36 Cal.4th at p. 250, disagreed, stating “foreseeability remains a highly relevant fact.” The Supreme Court also stated a defendant’s choice to have a security program “that includes provision of a roving security guard does not signify that the proprietor has assumed a duty to protect invitees from third party violence.” (Ibid.)

Plaintiff has failed to show a triable issue of fact exists. First, the Court cannot consider the unauthenticated call logs and arrest records submitted by Plaintiff as evidence of the area’s “high crime” nature. Second, that evidence does not show the foreseeability of a fight between Plaintiff and other tenants of the Pegasus Apartments. Rosas and a third-party witness to the fight identified at least two individuals in the group who were residents of the complex. Absent prior attacks by these residents or a history of animosity between Plaintiff and these residents, a fight between them was not foreseeable based on statistics of the area’s generally “high crime” nature.

Even assuming Defendant was negligent in not hiring more guards or hiring a guard who did not have bad vision and heart disease, Plaintiff has not shown that having more or better guards would have prevented the confrontation. “[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.” (Saelzler, supra, 25 Cal.4th at p. 774 [affirming grant of summary judgment].) The evidence here establishes at least two members of the group involved in the confrontation were tenants. (Plaintiff’s Separate Statement at pp.11-12; Rosas Decl., ¶ 5.) Therefore, Plaintiff cannot show the group would not have been allowed into the building if another guard had been present. (Saelzler, supra, 25 Cal.4th at p. 776.) “[A]ssaults and other crimes can occur despite the maintenance of the highest level of security.” (Id. at p. 777.) Plaintiff has only speculated that additional or “better equipped” security guards at the apartments would have prevented Plaintiff’s injuries. Plaintiff has failed to show it is more probable than not that absent Defendant’s negligence, the assault would not have occurred.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.