Case Number: BC501229    Hearing Date: July 29, 2014    Dept: 92

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

JACQUELINE ALBERTO,
Plaintiff(s),
vs.

KITCHEN 24 LLC, ET AL.,

Defendant(s).

CASE NO: BC501229

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND ADJUDICATION

Dept. 92
1:30 p.m. — #29
July 29, 2014

Defendant Kitchen 24 LLC’s Motion for Summary Judgment and Summary Adjudication as to both issues raised are DENIED.
1. Background Facts
Plaintiff, Jacqueline Alberto filed this action against Defendants, Kitchen 24 LLC, Eighty Five 75 LLC, David Dickerson, Kimberly Diane Herrmann, Errol Peter Roussel and Aileen Guadalupe Ruiz for injuries sustained when she was struck in the head by a ketchup bottle. The ketchup bottle was thrown by Defendant Aileen G. Ruiz. The incident occurred at a bar/restaurant called Kitchen 24 wherein Plaintiff was an invitee. Defendants Kitchen 24 LLC, Eighty Five 75 LLC, David Dickerson, Kimberly Diane Herrmann and Errol Peter Roussel are the owners of “Kitchen 24”.
The operative pleading herein is the First Amended Complaint, which alleges:
(1) Premise Liability against Defendants Kitchen 24 LLC, Eighty Five 75 LLC, David Dickerson, Kimberly Diane Herrmann, Errol Peter Roussel
(2) Negligence against Defendants Kitchen 24 LLC, Eighty Five 75 LLC, David Dickerson, Kimberly Diane Herrmann, Errol Peter Roussel
(3) Negligence against Defendant Aileen Guadalupe Ruiz
(4) Battery against Defendant Aileen Guadalupe Ruiz

2. Motion for Summary Judgment
The Court initially notes that Defendant Kitchen 24 LLC’s notice to the motion identifies that it is moving against the “second” and “third” causes of action for premise liability and negligence. The Court assumes that the numbering of the causes of action is incorrect and Defendant is moving against the first and second causes of action in the First Amended Complaint.

Defendant Kitchen 24 LLC (hereinafter “Defendant”) move for summary judgment on two grounds: (a) the act of Co-Defendant Aileen Guadalupe Ruiz (hereinafter “Ruiz”) was not foreseeable, and (b) nothing Defendant did (or failed to do) was a substantial factor in bringing about Plaintiff’s injury.

a. Evidentiary Objections
Plaintiff filed evidentiary objections with the opposition. Plaintiff objects to the declaration of Gene Lee. Objection Nos. 1 through 4 are SUSTAINED.

Defendants filed evidentiary objections with their reply papers. Defendant objects to the declaration of Plaintiff Jacqueline Alberto. All objections related to Plaintiff Alberto’s Declaration ¶¶3, 4, 5, 6, 7, 8, 10, 11 and 14 are OVERRULED.

b. Duty/Foreseeability & Breach
Defendants’ first argument is that the act of Ruiz was not foreseeable and thus no duty was owed. Even if a duty were to attach, there was no breach because there was no prior warning for the need for security inside the restaurant. 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.) “[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.)
Defendant provides in pertinent part that Plaintiff was employed as a lead waitress but at the time of the incident she was off duty. The incident occurred at 2:00 AM. (Defendant’s Facts 1 – 6) Ruiz was involved in an argument with female patrons at a nearby table because Ruiz accused the other patrons of flirting with her male companion. Ruiz threw the ketchup bottle at the other female patrons, missing them and striking Plaintiff. (Defendant’s Facts 7 – 17) Defendant provides that there were no prior similar incidents involving a ketchup bottle. There was no warning that Ruiz would throw the bottle. (Defendant’s Fact 19 – 20) Defendant has a security guard at the entry of the restaurant. (Defendant’s Fact 26). Based upon these facts, Defendant has met its burden to show no triable issue of fact as to duty and breach in that there were no prior similar incidents and no prior warnings for the need of a security guard inside the restaurant.
However, Plaintiff disputes Defendant’s Fact 19 to show that prior to the incident there have been instances where patrons have thrown food, plates, dessert dish, and a cake tray that is partially made out of glass. There is also evidence to show that glasses were thrown by patrons during prior fights between patrons. Further, as to Defendant’s Fact 20, Plaintiff provides that a glass was broken by Ruiz around the time she threw the ketchup bottle and the argument between the patrons lasted about five minutes prior to the bottle being thrown. The evidence also shows that other employees were attempting to diffuse the situation just prior to the bottle being thrown. Further, complaints were raised by the staff and discussions were had with the owners to remove the glassware items during the late night shift due to the unruliness of the late night patrons. However, the ownership did not institute the requested changes. (Plaintiff’s Fact 8) Further, Plaintiff provides that Defendant’s had knowledge that the customers patronizing the restaurant between the hours of 2:00 AM and 6:00 AM were coming from night clubs and bars and were already drunk. The patrons during this shift was unruly and aggressive. Floor managers often observed patrons yelling, pushing, shoving and fights would occur. (Plaintiff’s Facts 3 – 5) Despite this knowledge, Defendant failed to provide security within the restaurant. (Plaintiff’s Facts 14, 18, 19 – 21) The facts presented by Plaintiff dispute Defendant’s evidence that there were no prior similar incidents and further provide facts showing Defendant’s knowledge of the risks therein and the need for a guard within the restaurant. As such, Plaintiff has met its burden to show a triable issue of fact as to duty/foreseeability and breach. Accordingly, the motion as to these two elements is denied.

c. 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.)
As seen in the facts analyzed above, there are facts to show that Defendants had knowledge of the risk that unruly patrons would get into fights and begin throwing glass objects – whether it be the glasses, plates or the ketchup bottle. Despite this knowledge, Defendants failed and/or refused to act upon those complaints by their employees. These facts are sufficient to show a triable issue of material fact that Defendant’s failure to act caused and/or contributed to Plaintiff’s injuries.

d. Conclusion
There are triable issues of material fact concerning both foreseeability and causation. The motion for summary judgment and summary adjudication as to both issues raised are denied.

Dated this 29th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court