Case Number: BC685757 Hearing Date: December 17, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SEVAG SALIBIAN, ET AL.,,

Plaintiff(s),

vs.

BANK OF AMERICA CORPORATION, ET AL.,

Defendant(s).

Case No.: BC685757

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

December 17, 2019

1. Background Facts

Plaintiffs, Sevag Salibian, et al. filed this action against Defendants, Bank of America Corporation, et al. for damages arising out of a robbery that occurred in BOA’s parking lot. The robbery included an assault, which tragically resulted in the death of Decedent, Maria Salibian.

2. Motion for Summary Judgment

At this time, BOA moves for summary judgment on the complaint, contending the robbery was not foreseeable, such that it had no duty to provide security guards in its parking lot. Alternatively, it contends Plaintiffs cannot show causation, as they cannot show a security guard would have prevented the robbery and assault.

a. Issues Presented

The following issues are presented by way of the motion:

· Does BOA meet its moving burden to show it is entitled to judgment as a matter of law?

· Is Plaintiff’s expert declaration in support of the opposition admissible?

· Do a variety of incidents that occurred fifteen years prior to the subject incident give rise to a duty to provide security guards?

· Do a variety of incidents that occurred at other banks in the vicinity give rise to a duty to provide security guards?

o Did BOA know of the other incidents?

o Did BOA have constructive knowledge of the other incidents?

· Do a variety of incidents that occurred at a BOA branch 1.9 miles from the subject branch give rise to a duty to provide security guards at the subject branch?

b. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this 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 defense thereto.” (Ibid.)

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.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant’s initial evidentiary showing may “consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

c. Law Governing Obligation to Provide Security Guards on Commercial Property

Businesses, such as shopping centers, restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises against reasonably foreseeable criminal acts of third parties. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235. The nature of the reasonable steps required of the business depends on the circumstances. At the very least, it must undertake reasonable and minimally burdensome measures to assist customers and invitees who face danger from imminent or ongoing criminal conduct occurring on the premises or in the presence of the business owner/manager or its employees, including calling police when witnessing an assault (unless doing so might increase the danger or lead to reprisals). Kentucky Fried Chicken of Calif., Inc. v. Superior Court (1997) 14 Cal.4th 814, 823.

The extent to which a business must take measures to prevent criminal conduct (e.g., hiring security guards) is determined largely under general negligence principles per Rowland v. Christian (1968) 69 Cal.2d 108. The most important consideration is the foreseeability of third persons’ criminal conduct, determined primarily by incidents of prior similar conduct. Other factors include the closeness of connection between the defendant’s conduct and the injury suffered; the “moral blame” attached to the defendant’s conduct; the extent of the burden to the defendant and consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost and prevalence of insurance for the risk involved. Delgado, supra, at 236-247.

As in any negligence action, whether a duty was owed under the facts is a question of law for the court. Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213. In evaluating the threshold legal question of duty in these types of cases, the court must (i) determine the specific measures the plaintiff asserts the landlord should have taken to prevent the harm, (ii) analyze how financially and socially burdensome the proposed measures would be to the landlord, (iii) identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and (iv) assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Id. at 1214. “Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.” Id.

The threshold issue is whether the landlord had reason to anticipate risks of third party criminal activity (or other tortious conduct) on the premises. If the landlord had reason to know of a particular risk, he or she has a duty to warn tenants (or their guests and invitees) and to take reasonable security precautions for their benefit. Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 156-157. On the other hand, no landlord negligence liability attaches in the absence of evidence the landlord was put on notice, or had reason to know based on the facts of which the landlord was aware, of the threat of criminal activity in or around the premises and that the landlord could reasonably have prevented the particular harm. Hassoon v. Shamieh (2001) 89 Cal.App.4th 1191, 1195.

Traditionally, foreseeability of the risk does not necessarily turn on whether the same type of activity or event already occurred on the premises. Rather, the issue is whether, in light of all the facts and circumstances (including the nature, condition and location of the premises, as well as the landlord’s prior experience), the landlord had reason to anticipate the general character of the event or harm, not its precise nature or manner of occurrence. Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 129. However, where a “burdensome” duty is to be imposed on the landowner (e.g., requiring private security guards or other heightened security measures), a “high degree of foreseeability” is required. And “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.” Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 679.

d. Evidentiary Objections

Plaintiffs submitted evidentiary objections with their opposition papers. Objections 5 and 9 are sustained. The remaining objections are overruled.

BOA submitted evidentiary objections with its reply papers. Objection 1 to the Declaration of Coker is sustained; the remaining objections are moot. Objections 1, 2, 11, and 12 are sustained; the remaining objections are overruled. The objections to Plaintiff’s Request for Judicial Notice are overruled; the Court finds the documents are not submitted to establish the truth of the events set forth therein, but instead to establish BOA’s notice of criminal incidents in the vicinity.

Plaintiffs also object to Defendant’s separate statement in support of its reply papers. The Court has not considered the reply separate statement in connection with this ruling.

e. Moving Burden

Defendant’s undisputed facts 18-20 establish that there had been no prior similar incidents at the BOA branch at issue or any other branch within a one-mile radius in the prior fifteen years before the incident. Defendant’s undisputed facts 21-23 establish that the crime rate in the immediate vicinity of the incident was lower than the national average. Defendant therefore meets the moving burden to show it is entitled to judgment as a matter of law on the ground that the incident was not foreseeable.

f. Plaintiffs’ Burden

Plaintiffs argue there are triable issues of material fact concerning BOA’s duty to provide a security guard because (a) there were five similar incidents at the subject BOA branch in 2000 and 2001; (b) there were five similar incidents at a BOA branch 1.9 miles away from the subject branch between 2006 and 2013; and (c) there were 18 similar incidents at other banks within a one-mile radius of the subject BOA between 2000 and 2016.

i. Initial Note

The parties disagree concerning the statistical crime rate in the surrounding area. Defendant uses the crime rate in the “immediate vicinity.” Plaintiffs use the crime rate 2-5 miles from the subject branch. To the extent both parties’ evidence is otherwise admissible, the Court finds the crime rate is not the crux of the inquiry.

Evidence of the statistical crime rate in the surrounding area is not sufficient to demonstrate the requisite notice. See Ann M. v. Pacific Plaza Shopping Ctr., 6 C4th at 679 and Sharon P. v. Arman, Ltd., 21 C4th at 1191, holding that the statistical crime rate in the surrounding area combined with bank robberies and deterioration of premises is insufficient to establish the requisite foreseeability.

ii. Incidents at BOA branch in 2000 and 2001

The parties agree there were five incidents at the subject BOA in 2000 and 2001. The parties also agree there is no case authority directly on point concerning the temporal requirement with respect to prior similar incidents. However, in Sharon P., the California Supreme Court approved of a finding of non-liability based on a showing that the subject area had been crime-free for “more than ten years.” Because fifteen years is “more than ten years,” the Court finds incidents that occurred in 2000 and 2001 are too remote, as a matter of law, to give rise to a duty to provide a security guard in 2017. Again, as noted above, the issue of duty is one for the trial court to decide, as a matter of law.

iii. Incidents at BOA branch 1.9 miles away

The parties also agree that there were five similar incidents at a BOA branch 1.9 miles from the subject branch between 2006 and 2013. It is an open question whether the foreseeability necessary to warrant a duty to provide security at the landlord’s premises can be based on the landlord’s knowledge of prior similar crimes at another building in the vicinity. “It is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability.” Ann M. v. Pacific Plaza Shopping Ctr., supra, 6 C4th at 679; see also Sharon P. v. Arman, Ltd., supra, 21 C4th at 1198. Sharon P. noted the possibility raised in Ann M. but found it inapt because there was no evidence regarding the location of other crimes in the vicinity or of their proximity to the defendant landlord’s parking garage where the sexual assault of Sharon P. occurred; additionally, there was no indication the landlord had notice of those crimes.

The Court finds, as a matter of law, that incidents 1.9 miles away are not “immediately proximate” to the BOA location where the subject incident occurred. These incidents, therefore, do not raise a triable issue of material fact.

iv. Incidents at Other Banks in the Vicinity

Finally, Plaintiff provides evidence of 18 incidents that occurred at non-BOA banks .7 to .8 miles from the subject BOA. Defendant argues this evidence does not raise a triable issue of material fact because (a) .7 to .8 miles is not “immediately proximate,” and (b) there is no evidence BOA had notice of these incidents.

The Court agrees in both regards. In Ann M. the Supreme Court held that, absent prior similar incidents ON the property at issue, there would almost never be a duty to provide a security guard. It did note, in a footnote, “It is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability. Because Ann M. presented no such evidence, we need not further consider this possibility.” The Ann M. Court was considering the plaintiff’s argument that the defendant, which managed the common area outside of a mall, should have provided security guards based on prior incidents that occurred inside the mall itself (the Court ultimately found the incidents were not sufficiently similar and there was no evidence of notice to the defendant landlord of the prior incidents).

Obviously, a mall would be “immediately proximate” to the common area of the mall, even though the two have different ownership. A bank almost a mile away, however, is not “immediately proximate” to the bank where the incident occurred. These incidents, therefore, cannot give rise to a duty to provide a security guard under any cited authority.

v. Final Issues

Plaintiffs argue Defendant breached a duty, per the FDIC, to make itself aware of crimes in the area and to create a security plan in light of those crimes. Any such duty would flow between the FDIC and BOA, and would be for the primary purpose of protecting BOA’s assets, which are FDIC-insured. Plaintiffs cite no authority for this position that a breach of this duty would run in their favor, or that it would alter the analysis above, developed by California case law, concerning whether and when a defendant landlord has an obligation to protect a third party from criminal activity.

Plaintiffs also mention the fact that BOA, subsequent to this incident, has hired security guards at its facility. This is evidence of a subsequent remedial measure, and is not admissible. Additionally, the incident itself arguably created a duty to protect against future incidents under Ann M., but any such duty would not run retroactively. This issue, therefore, is also a red herring.

vi. Causation

The Court declines to rule on BOA’s argument concerning causation, as doing so is not necessary to a resolution of the merits of the motion.

vii. Disposition

BOA met its moving burden to show it is entitled to judgment as a matter of law on Plaintiffs’ complaint due to lack of foreseeability of the subject incident. Plaintiffs failed to raise a triable issue of material fact. The Court grants the motion on the ground that the incident was not foreseeable as a matter of law, and declines to rule on issues relating to causation.

Moving Defendant is ordered to give notice.