Case Number: PC054301 Hearing Date: June 09, 2014 Dept: 92

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

ALEJANDRO CONTRERAS,
Plaintiff(s),
vs.

ANDREW HAWKINS, et al.,

Defendant(s).

CASE NO: PC054301

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #40
June 9, 2014

Defendant, Pacoima Plaza Shopping Center’s Motion for Summary Judgment is Granted.

1. Background Facts
Plaintiff, Alejandro Contreras filed this action against Defendants, Andrew Hawkins, Daniez Ortega-Cardenas, Pacoima Plaza Shopping Center, LLC (“PPSC”), and City Private Security for damages arising out of an assault and battery. Plaintiff alleges he was shopping at PPSC when Hawkins assaulted him. Hawkins was a street vendor on the property selling CDs; it appears there was a discussion about whether the CDs were boot-legged or not, and then an attack occurred.

2. Summary Judgment Motion
Defendant, PPSC moves for summary judgment, contending it did not breach the standard of care owed to Plaintiff, and any breach did not cause Plaintiff’s damages.

a. Law Regarding Defendant Landowner’s Duty to Prevent Criminal Conduct by Third Parties
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.)

To prevail in such a case, 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.)

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 Hospital (1985) 38 C3d 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 Center, supra, 6 C4th at 679.

b. Evidentiary Objections
Plaintiff submitted evidentiary objections with his opposition to the MSJ. Plaintiff failed to submit a proposed order on the objections, as required by CRC 3.1354(c). The Court therefore declines to rule on the objections.

Defendant submitted evidentiary objections with its reply papers. Objections 9-13 are sustained; the remaining objections are overruled.

c. Prior Similar Incidents
The issue before the Court is whether there were sufficient prior similar incidents to give rise to a heightened duty on the part of Defendant, with which Defendant failed to comply. In this regard, Defendant presents facts 59-65. These facts establish that one of the security guards, Robert Fernandez, was familiar with Hawkins and knew him to be a Christian Rapper. Fernandez had previously asked Hawkins to leave the premises when selling CDs, and he had complied. Hawkins had not been violent to customers at PPSC prior to the subject incident. There were no prior reports concerning Hawkins on the day of Plaintiff’s incident. Plaintiff’s family regularly visited PPSC and had never had any problems. From 2006 to the date of the incident, PPSC was unaware of any assaults involving Hawkins or any other street vendor on the property. Street vendors, including Hawkins, had previously been asked to leave, but no violence had ever ensued.

Plaintiff, in opposition to the motion, produces the deposition testimony of Fernandez to support his position that Defendant had a duty to protect against the assault by Hawkins. Fernandez testified, in this regard:
Q When you saw him on the premises a week before the incident selling Christian rap CD’s, did you ask him to leave?
A Rephrase that again.
Q Yeah. The week or so before the incident when you last saw him on the property before the incident and he was selling CD’s, did you ask him to leave?
A Several times.
Q Did he eventually leave?
A Yes.
Q And you were not involved in any kind of physical altercation with him at that time; is that
correct?
A There was -— the first time we kind of met and we found him selling CD’s, I confronted him and he got kind of verbal a little. So I came up on him and I told him “You need to leave now.” Took my mace out and then we started getting a little closer. And then another individual from the Rite Aid came out and tells him, you know, “You need to listen to this officer. He’s telling you to leave. He’s not —— he’s trying to do his job.” And he said something else and then he left.
Q So it didn’t end in any —
A No.
Q -— type of violence; correct?
A No.
Q There was no violence?
A No.
Q There was no physical altercation?
A No.
Q And that was about a week before the incident?
A There was several times. I remember that particular time that he started calling me names.
Q How long was that before the incident?
A Maybe two months.
Q Did you ever witness him being violent or physical with any other customers of the plaza?
A No.
Q When he was selling his Christian rap CD’s, was he always pretty much respectful to the customers?
A I never seen him argue. Just with me. Because he told me “I need to make money.” I said “You are not going to make the money here.” There was one time I barely met him. I gave him an opportunity and tell him sell a couple of them and then you leave. But it’s like I said. They come
back after a while. We don’t let them do that. We strictly tell them stores are selling CD’s and you are taking away the business. They got permits. They pay insurance. They pay security and you got to leave.
Q So it sounds like he was just a little bit angry with you because you were asking him to leave and he was trying to make some money but that he wasn’t angry at any time that you are aware of with any of the customers of the shopping center; is that correct?
A Yes.
Q Okay. Can you recall or can you estimate for me how many times prior to this incident you ever had conversations with this individual about leaving the premises?
A Give or take about six, seven times. and
Q So each time he would come on the premises try to sell CD’s, you guys would ask him to leave?
A Yes.
Q Would it be true he would always eventually leave after you asked him to leave even though it might have taken a little extra effort on your part?
A Yes. He never, you know, tried to fight anybody.

…

Q During the time you worked at Pacoima Plaza, do you recall any other incidents where there was a fight on the location?
A Fights?
Q Fights.
A Most of the time, we get there, they were over with. But I don’t recall. I-
Q Witnessing any?
A Because the phone we carried, basically it would call us and we go to the store. But the time we get there, they just say there was a fight here but they all left. Because there was a lot of gang
members.
Q So there’s a lot the gang members that ——
A Yes.
Q — hang out in that area?
A No. They don’t hang out. They go shopping.
Q So there were prior incidents, just none that you ever witnessed?

Q Do you recall how many times you were called regarding fights?
A The one that I remember was maybe once or twice
Q You talked about chasing off or encouraging the Christian rapper seller to leave six or seven times?
A During the two, four years, yes.
…
A But when we do our patrol or did our patrol, we happen to see him standing there, we tell him to
leave. Anybody actually.
Q I’m just trying to confirm whether the six or seven times you referenced were times that you were personally involved, it was during your shift?
A Yes. On my shift.
…
Q
Okay.
Prior to the incident, had you ever been told by anyone that you worked with to keep this black individual that, was involved in the fight off the premises? Did they specifically identify him and say
A No.
Q “Keep that guy off the premises”?
…
Q Why did you go for your mace the first time you met him?
A Because he got aggressive and because he wouldn’t move.
Q Okay. And so you normally use mace to make people move?
A All depends. If I’m talking to you and you don’t move your hands or whatever —
Q Uh-huh.
A — we will be talking. I’ll be telling you to leave the property. But this guy is big. And the — you know, there’s indications that something might happen. So you want to make sure you are — you are going to be ready for it.

d. Analysis
Plaintiff essentially argues that a duty to evict Hawkins from the property by calling the police should have been imposed because:
• There was prior gang activity in the area;
• Hawkins had become aggressive on one occasion when he was asked to leave;
• Hawkins had been asked to leave six to seven times prior to the subject incident; and
• Defendant’s own manual requires Defendant to ensure that street vendors do not operate on the property.

As Defendant correctly notes in reply, none of the foregoing is sufficient to impose the duty Plaintiff seeks to impose. The fact that there was, generally speaking, gang activity in the area does not mean that Defendant was obligated to evict street vendors, with whom there had been no prior violent incidents, from the property. Notably, evidence of the statistical crime rate in the surrounding area is not sufficient to demonstrate the requisite notice. Ann M. v. Pacific Plaza Shopping Center, supra, 6 C4th at 679, 25 CR2d at 145; Sharon P. v. Arman, Ltd., supra, 21 C4th at 1191.

Similarly, Hawkins had become aggressive when asked to leave, but when the entire testimony is read, it is clear that Hawkins became verbally aggressive because his livelihood was threatened; Hawkins had never been aggressive toward a potential customer, and had never been actually violent toward anyone, and there is no reason to believe that someone who was aggressive when asked to leave would also become aggressive toward a potential customer.

Finally, Plaintiff argues that Defendant’s own policy manual obligated it to evict persons who were selling goods illegally on the premises. This argument fails for two reasons. First, every time Defendant asked Hawkins to leave, he did. Second, the purpose of the manual appears to have been to ensure illegal goods were not being sold, not to protect patrons from potential violence.

Dated this 9th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court