Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC-05-443460
Marchiano, P.J.
At a nightclub owned and operated by Eleventh & Folsom Preservation and Community Centers, Inc., and Jon Scott Stevens (defendants), an unknown assailant shot Aaron Anderson (plaintiff). Plaintiff brought this negligence action, alleging defendants failed to provide adequate security. The jury was unable to reach a verdict, and the trial court subsequently granted summary judgment against plaintiff, concluding he could not establish the causation element of his negligence claim. We reverse the judgment and remand the matter to the trial court for further proceedings because the inferences reasonably drawn from the evidence permit a finding that defendants’ alleged negligence was a substantial factor in bringing about the harm to plaintiff. Secondly, we reject plaintiff’s contention that he is entitled to judgment against defendants in accordance with an offer to compromise (Code Civ. Proc., § 998) he accepted after summary judgment was granted. We hold that the trial court’s summary judgment order terminated plaintiff’s power to accept defendants’ offer and that his purported acceptance did not result in a valid compromise under section 998.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL BACKGROUND
Studio Z (the Club) was a concert venue in San Francisco that defendants rented out to promoters for various events. In December 2003, they leased the Club to promoter Marquayes Wiggins (Wiggins) for a hip hop music event called the “Holiday Jingle,” to be held on December 20, 2003, from 9 p.m. to 2:30 a.m. The Holiday Jingle was largely a DJ event, but featured as the headline performer Mac Dre, a high-profile rap artist who “drew a real ‘gangster’ crowd.”
Defendants hired eight security guards for the Holiday Jingle. Under defendants’ security policy, every patron was required to pass through one door, “the entrance door,” where security guards conducted a pat down search and scanned each patron with a metal detector wand. Entry through the other door to the Club, “the exit door,” was generally forbidden.
Plaintiff attended the Holiday Jingle. When he arrived at the Club with his friend Ricky McCloud (McCloud), two security guards were posted at the front entrance, and additional security was monitoring the exit door. While plaintiff was waiting to go inside, he saw a security guard nod to two men and move aside to allow them to enter the Club through the exit door. McCloud observed at least 10 people enter through the exit door without being searched. Plaintiff presented identification to the security guard at the entrance door, was wanded for metal objects, and entered the Club.
Around the same time, Shawnmell Mitchell (Mitchell) and Barbara Dorsey (Dorsey) entered the Club with several friends. Security allowed them inside without searching them. While waiting in line to enter the Club, Mitchell saw numerous people entering through the exit door without a weapons check, and Dorsey saw “groups of people going through [the] exit” without being stopped or checked by security guards. Mitchell and Dorsey heard the metal detector sound when a security guard at the entrance door passed the wand over a man’s waistband. Mitchell heard the security guard tell the man, “I can’t let you in with that. You got to take it out,” and the man said, “Well, I am supposed to be performing. [¶]... [¶] I’m not coming in without it.” Dorsey heard the man say, “I’m not coming in without my ‘piece,’ ” and the guard responded, “Well, you are not coming in.” The man and his entourage turned around and “went straight in through the exit door” without a security check.
Plaintiff cited to virtually none of Dorsey’s trial testimony in his statement of facts. As the trial court, in its discretion, considered this evidence, we do so as well. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315.)
During Dorsey’s first dance, she kept bumping against a hard metal object on her partner’s person that she believed was a gun. She “felt the same thing” when she danced with three or four other men and believed they had guns as well. Mitchell felt a hard “thing” in one dance partner’s waistband that did not feel like a belt buckle or a cell phone, and she believed it was a gun. While dancing with another man, she felt something really heavy at his waist area and asked if it was a gun. He said it was.
While Mitchell was dancing, a tall man in a gray shirt bumped into her. The man, who appeared to be on drugs, was “amp’d up” and dancing aggressively, doing a hyphy dance and swinging his dreadlocks around. Mitchell saw the man with dreadlocks “all through the [C]lub... running around acting really crazy.”
Shortly thereafter, plaintiff noticed two men tussling or wrestling near where he was standing. Seconds later, he heard a gunshot and realized he had been shot. He did not know who shot him or where the bullet came from. Dorsey, who was standing near him, saw the flash of a gun from where the men were wrestling. Mitchell saw the man with dreadlocks holding the gun. Other patrons were trying to wrestle him to the ground and take the gun.
When police arrived, they determined the shooter had fled the scene. Mitchell gave them a physical description of the shooter, but no witness to whom police spoke was able to identify him. He was never identified or apprehended.
PROCEDURAL HISTORY
In July 2005, plaintiff filed a complaint against defendants, Wiggins, and co-owner of the Club Zeremy Uptegrove, asserting causes of action for assault and battery and negligence based on allegations that defendants breached a duty to make the Club reasonably safe. Specifically, he alleged they had violated their own security policy and failed to take sufficient security measures to protect him from the criminal acts of third parties who they should have known were armed with deadly weapons and intended to injure other patrons. Defendants and Uptegrove filed an answer to the complaint and cross-complained against Wiggins, the company that supplied the security guards, and that company’s owners. Default was entered against the cross-defendants in July 2006.
Uptegrove was later dismissed as a defendant.
When trial began in January 2008, plaintiff filed a First Amended Complaint that deleted his cause of action for assault and battery, but otherwise retained the allegations in the original complaint, including his negligence cause of action. The jury deadlocked during deliberations, and the trial court declared a mistrial, resetting trial for December 1, 2008.
Defendants’ Motion for Summary Judgment
In July 2008, defendants filed a motion for summary judgment, contending that plaintiff “has not, and cannot, show causation, an essential element of [his] claim for negligence.” (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772 (Saelzler)[the elements of negligence are a duty of care, a breach of this duty, and proximate or legal causation of injury].) In support of their motion, defendants submitted a statement of 45 undisputed material facts with excerpts from the trial testimony and a copy of the police report. They contended plaintiff could not meet his burden of proof at trial to show the alleged violations of their security policy caused his injury. Asserting as an undisputed fact that authorized individuals were allowed access to the Club before it opened to the public and before security guards came on duty, they maintained “[it] is equally reasonable that an authorized individual brought the gun into the premises earlier in the day as it is that someone brought the gun in while security was screening patrons.” They relied on Uptegrove’s trial testimony that certain individuals were allowed to enter through the exit door and that equipment was typically brought in before the Club opened to the public and security guards came on duty. Defendants claimed that “the perpetrator may have legitimately gained entrance before security even came on duty, or smuggled [the gun] in with musical equipment through the exit door” and that plaintiff cannot show otherwise since he has no evidence of how the gun was brought into the Club and “[n]either [he] nor anyone else knows who the assailant was, [or] when or how he entered the Club....”
For purposes of their motion, defendants “assume that they had a duty to provide security at the Club on the night of the incident.”
Defendants also contended that there is no evidence “more security guards would have prevented this spontaneous attack.” (See Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1387−1388 [a plaintiff must prove at trial that increased security measures more likely than not would have prevented the attack].) They asserted as material facts that plaintiff, Mitchell, and bartender Darin Rother had no prior notice a gun would be fired, that McCloud never saw anyone who posed a threat to other patrons, and that “[p]laintiff offered no testimony... having more security guards on duty would have prevented the sudden, unforeseeable discharge of a hidden firearm in the Club” or “that the failure to provide more security guards was a substantial factor in causing [his] injury.”
In opposing the motion, plaintiff filed a statement of facts in which he purported to dispute the majority of defendants’ facts and identified 24 additional facts that he supported with declarations, excerpts from the trial and deposition transcripts, and trial exhibits. He relied on evidence that no one “except... staff and possibly the promoter” was allowed to enter through the exit door, that everyone entering through the entrance door was subjected to a weapons search, that Uptegrove personally cleared in advance the individuals who were permitted to enter the Club without a security check before the scheduled event, and that the only person he approved to do so on the night of the Holiday Jingle was the promoter, Wiggins. Plaintiff cited testimony from his security expert that a “real breakdown” occurred in defendants’ implementation of their security policy and that eight security guards was not sufficient to handle the size of the crowd expected to attend. He also relied on the evidence set out above regarding the people security allowed inside without a weapons check, the number of patrons inside the Club carrying handguns, and the assailant’s aggressive conduct before the shooting. He cited testimony that such misconduct would justify a “warning” from security. Defendants filed a reply to plaintiff’s statement of facts, answering his evidentiary objections and asserting their own.
The trial court did not issue a tentative ruling before the October 17, 2008 hearing on the motion. The trial court took the matter under submission, asking no questions of counsel and giving no indication of its intended ruling. On November 4, 2008, the trial court issued an order granting the summary judgment motion. In a lengthy, diligent, written decision, the trial court concluded the evidence “does not show it is more likely that the actualgun involved in the shooting was brought into the Club after Defendants’ security guards went on duty.” The trial court concluded, further, that plaintiff could not establish defendants’ alleged failure to take sufficient security measures caused his injury because “no one knows what measures can offer 100% protection against spontaneous violence” or whether additional guards could have prevented the shooting. In a separate order, the trial court ruled on the parties’ evidentiary objections, striking many of plaintiff’s facts as unsupported by the evidence he cited. Shortly thereafter, the trial court entered judgment in defendants’ favor. Plaintiff promptly moved to set aside the judgment and enter judgment against defendants under section 998, in accordance with an offer to compromise he purportedly accepted after the trial court issued its order granting summary judgment. (See § 663.) The trial court denied the motion.
Plaintiff filed a timely notice of appeal from the trial court’s summary judgment order and evidentiary rulings, the judgment, and the order denying his motion under section 663.
DISCUSSION
I. Plaintiff’s Appeal from the Judgment
A. The Standard of Review
We review a grant of summary judgment de novo, determining independently the construction and effect of the evidence and arguments before the trial court. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128; see Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355−356.) 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 a judgment as a matter of law....” (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In deciding whether a material factual issue exists for trial, we take the facts from the record before the trial court, considering “all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence....” (§ 437c, subd. (c); Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716−717 (Wilson).) We construe the evidence liberally, in the light most favorable to plaintiff, and strictly scrutinize defendants’ own evidence, resolving any evidentiary doubts or ambiguities in plaintiff’s favor. (Saelzler, supra, 25 Cal.4th at p. 768; see Wilson, supra, at p. 717.) As summary judgment is a “ ‘drastic measure that deprives the losing party of a trial on the merits,’ ” it should “ ‘be used with caution,’ ” and we resolve any doubts regarding its propriety in favor of the nonmoving party. (Mendoza v. Brodeur (2006) 142 Cal.App.4th 72, 79, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [superseded by statute on other grounds as stated in Aguilar, supra, at p. 853, fn. 19].)
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at pp. 843, 850.) A defendant meets this burden if he demonstrates “that one or more elements of the cause of action... cannot be established....” (§ 437c, subd. (p)(2); Aguilar, supra, at p. 850.) To do so, he must show that the plaintiff “has not established, and cannot reasonably expect to establish,” an essential element of his claim. (See Saelzler, supra, 25 Cal.4that p. 768.)
B. The Evidence Is Sufficient to Raise a Jury Question
1. Relevant Legal Principles
Causation is generally a question of fact for the jury, and the trial court may decide it as a matter of law only if reasonable people could not dispute its absence. (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235 (Rosh).) Courts apply a high standard in finding, as a matter of law, that the material facts show a lack of causality. (Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273−1274.) A triable issue of fact exists if the evidence would permit a reasonable juror to find, more likely than not, that defendants’ negligence was a substantial factor in bringing about the harm to plaintiff. (See Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted [“if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact... in accordance with the applicable standard of proof”]; Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481 (Leslie G.)[legal causation exists if the defendant’s negligence was a substantial factor in bringing about the harm, and no rule of law relieves him from liability].) “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm.... Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (CACI No. 430.)
“[I]f the likelihood that a third person may act in a particular manner is ‘ “one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” ’ ” (Leslie G., supra, 43 Cal.App.4th at p. 481.) Nonetheless, a plaintiff who claims he was harmed by the defendant’s failure to provide adequate security must “establish, by nonspeculative evidence, some actual causal link between [his] injury and the defendant’s failure to provide adequate security measures.” (Saelzler, supra, 25 Cal.4that p. 774.) “Where... there is evidence that the assault could have occurred even in the absence of the... negligence, proof of causation cannot be based on mere speculation, conjecture, and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence....” (Leslie G., supra, at p. 488.) “Where... the plaintiff seeks to prove an essential element of [his] case by circumstantial evidence, [he] cannot recover merely by showing that the inferences [he] draws from those circumstances are consistent with [his] theory. Instead, [he] must show that the inferences favorable to [him] are more reasonable or probable than those against [him].” (Id. at p. 483, italics omitted.)
Defendants rely on Leslie G., supra, 43 Cal.App.4th 472 and Saelzler, supra, 25 Cal.4th 763. In Leslie G., a woman who was raped in the garage of her apartment building sued the owners for negligence, contending their failure to repair a broken garage security gate caused her attack. (See Leslie G., supra, at pp. 476−477.) She could not establish how the rapist entered the garage or that he would not have gained entry if the gate had been functioning properly. (See id. at pp. 483−484.) The court affirmed the trial court’s grant of summary judgment “[s]ince there is no direct evidence that the rapist entered or departed through the broken gate (or even that the broken gate was the only way he could have entered or departed),” observing that a plaintiff “cannot survive summary judgment simply because it is possible that [the rapist] might have entered through the broken gate.” (See id. at pp. 483, 490, original italics.)
In Saelzler, unidentified assailants assaulted a delivery woman one afternoon at a large apartment complex. (See Saelzler, supra, 25 Cal.4th at p. 769.) She filed suit against the owners of the complex, contending they failed to keep all entrance gates locked and functioning and should have hired daytime security guards in addition to those they provided at night. (See id. at pp. 769−771.) In upholding the trial court’s grant of summary judgment, the court emphasized the absence of evidence regarding the identity of the assailants, whether they were tenants or trespassers, whether they entered through the security gate, and whether the gate was broken or the assailants broke it. (See id. at pp. 769, 771, 780.) In addition, the court found that even if the defendants’ security was inadequate, this amounted only to “ ‘abstract negligence,’ ” because the plaintiff could not prove it was more probable than not that additional security precautions would have prevented the attack. (See id. at pp. 773, 775−776.)
“[W]hen the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Saelzler, supra, 25 Cal.4th at pp. 775−776, italics omitted, citing Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269.) Nonetheless, “ ‘ “[a plaintiff] is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause. It is enough that he introduces evidence from which reasonable [persons] may conclude that it is more probable that the event was caused by the defendant than that it was not....” ’ ” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029−1030 (Raven H.).)
2. A Jury Could Reasonably Infer Causation from the Evidence
We have carefully considered the evidence properly before the trial court and the authority on which defendants rely. Although the question is a close one, we conclude that the inferences reasonably drawn from the evidence are sufficient to raise a jury question as to whether defendants’ alleged negligence was a substantial factor in bringing about the harm to plaintiff.
A plaintiff need not produce testimony from his assailant as to what “... ‘specific lack of deterrence on the property made easier his... opportunity to commit the crime....’ ” (Saelzler, supra, 25 Cal.4th at p. 779.) “[I]n a given case, direct or circumstantial evidence may show the assailant took advantage of the defendant’s lapse (such as a failure to keep a security gate in repair) in the course of committing his attack, and that the omission was a substantial factor in causing the injury. Eyewitnesses, security cameras, even fingerprints or recent signs of break-in or unauthorized entry, may show what likely transpired at the scene.” (Ibid.) The trial court concluded: “While Plaintiff does present eyewitness testimony showing what transpired on the night of the shooting, none of this testimony shows that it is more likely than not that the shooter took advantage of the Defendants’ lapses in the course of committing his crime.” We disagree for the following reasons.
We observe, first, that the trial court mischaracterized the evidence on which defendants relied. The trial court concluded this evidence showed that authorized individuals were already inside the Club before it opened to the public and before security guards commenced their shift and that “these ‘authorized persons’ included bartenders, maintenance crews, production staff, performers and anyone in Mr. Wiggins’ promotion company. Nothing suggests that the shooter could not have been one of these many authorized people with privileged access to Studio Z before Defendants’ security guards went on duty.” Uptegrove’s trial testimony, the basis for these assertions, shows that multiple individuals were allowed entrance through the exit door, but not that they were allowed such entry before the Club opened and security came on duty. Indeed, Uptegrove testified that they were generally allowed through the exit door to avoid waiting in line. The only reference to activity before the doors opened and security guards came on duty relates to sound and music equipment, which “typically” was brought in earlier in the day. Uptegrove does not indicate who brought in the equipment. To the extent his testimony suggests “the promoter” did so, it is unclear whether this included “anyone in [his] company,” as the trial court found.
We note that defendants omitted four lines from the heart of this colloquy that suggest Uptegrove was referring to the promoter himself, not his company: “[I] would go ahead in the beginning of the night and I say introduce, this is our client for the evening. Chill, this person would be allowed to have that kind of access.”
In response to this evidence identifying the persons generally allowed through the exit door, plaintiff presented evidence that only Wiggins and Club staff were authorized to enter the Club without a security check on the night of the shooting. Uptegrove stated at deposition: “[I]t was just the promoter person that I dealt with. They didn’t really have any reason to go back and forth because they had their DJ equipment set up, there was really no reason for them to go back and forth. It was really just Marquayes [Wiggins].” Construing the ambiguities in plaintiff’s favor, we are left with the facts that DJ equipment may have been brought in before security came on duty that night and that the only people authorized to enter the Club without a weapons check after security came on duty were Wiggins and Club staff.
The evidence presented, and the inferences reasonably drawn from it, would permit a trier of fact to decide that it is unlikely the gun entered the Club in one of these ways and that it likely came in through a lapse in security. First, a jury could find it unlikely that the assailant worked at the Club or at the promoter’s company, or was involved in the production of the event. No witnesses identified in the police report, including Wiggins and the bartenders, recognized the dreadlock-wearing African-American as the shooter, as they likely would have if he was employed by the promoter or the Club. The evidence also is inconsistent with a finding that the shooter was at the Club that night in the course of his job. He appeared to be on drugs and was dancing and “running around acting really crazy” during the event. There also is no evidence that Wiggins, any staff member, or anyone assisting with equipment brought in a gun or that the shooter took the gun from one of them. In the absence of such evidence, a jury could reasonably infer that the gun likely belonged to the assailant or was taken from someone security failed to search. Indeed, the evidence shows that security allowed individuals, and at times, groups of people, to enter the Club that night without a weapons check, that Mac Dre drew a “gangster” crowd, and that several men on the dance floor were carrying handguns. “ ‘[C]ausation in fact is ultimately a matter of probability and common sense....’ If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case.” (Raven H., supra, 157 Cal.App.4th at pp. 1029−1030.)
Plaintiff also contends that defendants’ security policy provided for a “sweep” before doors opened to the public, requiring those inside the Club to exit and reenter the Club. The trial court struck this fact from plaintiff’s statement of disputed facts because he failed to support it with an evidentiary citation. As he does not challenge the trial court’s ruling on appeal, we do not consider this evidence.
The court in Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1537−1538 found similar evidence sufficient to survive summary judgment on the causation question, concluding it was “not merely speculation,” as the defendants claimed. The plaintiff in that casewas raped by an intruder at the apartment complex where she lived. (See id. at p. 1523.) She presented evidence that a number of entry doors to the buildings were not properly closing and locking, but had not been repaired despite repeated complaints. (See id. at pp. 1524, 1536.) Although the investigating officer testified that there was no evidence of forced entry, the defendants contended the attacker could have entered the building in a number of ways other that through a broken door. They suggested that a tenant could have allowed him inside, or that he entered through another door, a window, or a door that was propped open. (See id. at pp. 1536−1537.) The court rejected these assertions, concluding: “[C]onsidering the lack of evidence supporting any of these other methods of entry, it is more likely that the assailant entered through a door that failed to lock than by any of these alternative methods.” (Ibid.) The court emphasized evidence that the broken doors had allowed entry to the rapist and other male intruders on earlier occasions. (See id. at pp. 1537, 1538.)
A jury question also exists as to whether the security guards on duty would have prevented the shooting if they had taken sufficient measures in response to the assailant’s aggressive misconduct. Where security guards fail to deter criminal activity, it is generally for the jury to decide whether it is reasonably probable that adequate security could have prevented the shooting, either by serving as a deterrent or by intervening prior to the shooting. (See Rosh, supra, 26 Cal.App.4th at p. 1236, fn. 3; Madhani v. Cooper (2003) 106 Cal.App.4th 412, 418.) “Proof of the relation of cause and effect can never be more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we have observed those sequences on previous occasions.’ When a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved him; but the experience of the community is that with guards present people are commonly saved, and this affords a sufficient basis for the conclusion that it is more likely than not that the absence of the guard played a significant part in the drowning. Such questions are peculiarly for the jury. [W]hether reasonable police precautions would have prevented a boy from shooting the plaintiff in the eye with an airgun,... and many similar questions, cannot be decided as a matter of law.” (Prosser, Proximate Cause in California (1950) 38 Cal. L.Rev. 369, 382−383, fns. omitted; accord, Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 120.) The evidence here permits an inference that the allegedly inadequate response of security to the assailant’s conduct facilitated its continuation and escalation, leading up to the shooting.
We are not persuaded by defendants’ attempt to distinguish cases in which no security is provided. In the authority on which they rely, the court was simply rejecting the lower court’s conclusion that a complete absence of security “is necessarily a ‘contributing cause of most crimes occurring on that property,’ ” noting the facts did not show a total lack of security in that case. (See Saelzler, supra, 25 Cal.4th at p. 778.)
3. Leslie G. and Saelzler Do Not Call for a Different Result
The evidence in this case lends greater support to a finding of causation than the evidence in the cases on which defendants rely, Leslie G. and Saelzler, where the assailants’ means of entry remained purely a matter of speculation. We find Saelzler distinguishable because that case addressed claims that the defendants had not hired enough security guards to protect tenants at a 28-building, 300-unit complex with many gated entrances, where “assaults and other crimes can occur despite the maintenance of the highest level of security.” (See Saelzler, supra, 25 Cal.4th at pp. 769, 777.) Although plaintiff contends defendants should have provided more security guards, his primary contention is that existing guards negligently performed their duties. Moreover, the venue in this case had only two doors and was governed by a security policy generally precluding entry through one door and requiring a pat down search and wanding with a metal detector at the other. The court in Saelzler recognized that: “ ‘[w]hen an injury can be prevented by a lock or a fence or a chain across a driveway or some other physical device, a landowner’s failure to erect an appropriate barrier can be the legal cause of an injury inflicted by the negligent or criminal act of a third person....’ ” (See id. at p. 779 [distinguishing “open area[s] which could be fully protected, if at all, only by a Berlin Wall”].) The gravamen of plaintiff’s case is defendants’ failure to provide an analogous barrier to firearms.
We also observe that Leslie G. and Saelzler both assume that a moving defendant may meet his burden by simply pointing to an absence of evidence. (See Leslie G., supra, 43 Cal.App.4th at p. 482; Saelzler, supra, 25 Cal.4th at p. 780.) Both cases were decided before Aguilar, supra, 25 Cal.4th at page 854, which plainly rejected this proposition, concluding a moving defendant must produce evidence demonstrating that the plaintiff “does not possess, and cannot reasonably obtain, needed evidence.”
Accordingly, the judgment must be reversed. We express no opinion as to the existence and scope of the duty defendants owed to plaintiff, leaving these matters for determination on remand, and do not suggest that a jury will necessarily find in favor of plaintiff at a trial.
In light of our holding, we need not address plaintiff’s contention that the trial court erred in excluding the proposed opinion of the ALJ in a proceeding brought by the California Department of Alcoholic Beverage Control.
II. The Trial Court Properly Denied the Motion to Set Aside the Judgment (§ 663) On November 4, 2008, the day the trial court granted summary judgment, defendants served plaintiff with a written offer to compromise, agreeing to have judgment in the amount of $100,001 entered against them. (See § 998.) They did not learn of the trial court’s ruling until two days later. On November 6, 2008, the day after a clerk mailed copies of the summary judgment order to the parties, plaintiff’s counsel executed notice of acceptance of defendants’ offer and served it by facsimile, regular mail, and personal service, delivering a copy to defense counsel’s office just before 5 p.m. that day. Plaintiff lodged a copy of the offer and notice of acceptance with the clerk on November 7. Defendants denied that plaintiff’s purported acceptance created a valid compromise under section 998, and each party submitted a proposed judgment to the trial court. On November 14, the trial court entered summary judgment under section 437c.
This court follows a longstanding line of authority permitting an order denying a motion to set aside a judgment to be appealed separately from the underlying judgment. (See Howard v. Lufkin (1988) 206 Cal.App.3d 297, 301−302; accord, Norager v. Nakamura (1996) 42 Cal.App.4th 1817, 1819 & fn. 1.)
The record does not indicate when plaintiff’s counsel received the summary judgment order, but the timing and the urgency with which he attempted to accept the offer on November 6, suggest that he received the order that day. Indeed, he contends on appeal that he accepted the offer “because he did not want to... litigate the lengthy appeal of the order granting summary judgment,...”
Plaintiff contends the trial court erred in failing “to enter judgment in accord with the unconditional Section 998 offer and acceptance” and in failing “to remedy that error by denying [his] motion to vacate the judgment....” (See Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153 [section 663 provides a remedy when a trial court has drawn incorrect conclusions of law].) The parties agree that we review the trial court’s ruling for an abuse of discretion. Nonetheless, to the extent the decision turns on the trial court’s construction of section 998, we review it independently. (See California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369, 375.)
Section 998 provides in pertinent part: “Not less than 10 days prior to commencement of trial..., any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (§ 998, subd. (b).) “If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly....” (§ 998, subd. (b)(1).) “If the offer is not accepted prior to trial... or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn....” (§ 998, subd. (b)(2).) Plaintiff contends he is entitled to judgment against the defendants because he accepted their offer within the statutory period, forming a valid compromise agreement.
Ordinary contract law governs the offer and acceptance process under section 998 when these principles do not conflict with the statute or defeat its purpose. (T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 (Cobb).) Accordingly, in deciding whether an agreement was formed in this case, we must determine the effect of a grant of summary judgment upon a plaintiff’s power to accept a pending offer to compromise. (See Rest.2d, Contracts, § 35 [“[a] contract cannot be created by acceptance of an offer after the power of acceptance has been terminated”].) In making this determination, we read section 998 together with section 437c, giving effect to both provisions when possible. (See Mejia v. Reed (2003) 31 Cal.4th 657, 663 [“[E]very statute should be construed with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect”].) Section 998 provides no express guidance on a number of issues relevant to its application. (Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1375 (Guzman).) In construing this provision, we must “ ‘ “ascertain the intentof the Legislature so as to effectuate the purpose of the law....” ’ ” (Berg v. Darden (2004) 120 Cal.App.4th 721, 726 (Berg).)
“[I]t is common to speak of the duration ‘of an offer.’ But ‘offer’ is defined... as a manifestation of assent, and the reference here is not to the time occupied by the offeror’s conduct but to the duration of its legal operation. Hence this topic speaks of the duration and termination of the offeree’s power rather than the duration and termination of the offer.” (Rest.2d, Contracts, § 35, com. a, p. 101.)
We conclude that these principles are best served by a determination that the disposition of a case on summary judgment terminates a plaintiff’s power of acceptance under section 998. To hold otherwise would defeat the purpose of the statute and encourage the sort of gamesmanship apparent in this case. Section 998 is designed to encourage the settlement of lawsuits prior to trial. (Cobb, supra,36 Cal.3d at p. 280.) A grant of summary judgment disposes of all the issues in a case, and with them, the need for settlement. Indeed, no cause remains for the parties to settle. As the Legislature implicitly recognized in providing for the termination of such offers when trial begins, long before final disposition of a case, the statute’s purpose is no longer served after the litigation has ended. (See § 998 [deeming offer withdrawn if not accepted prior to trial, even if the 30-day window has not expired].) Giving continuing effect to a pending offer after a summary disposition would bring settlement communications under the statute to a standstill during the pendency of summary judgment motions. Defendants, knowing they would be bound even if they prevailed on summary judgment, would await a ruling on their motions before proceeding under section 998. Plaintiffs, knowing they could fall back on a pending offer, would delay settlement, then choose the more appealing result. We doubt the Legislature intended such a result, penalizing defendants, who have been deemed free from liability, for attempting settlement, while allowing a recovery to plaintiffs whose cases have been found meritless.
To hold that a plaintiff’s power of acceptance continues for the statutory period notwithstanding a grant of summary judgment also would unduly elevate section 998 over section 437c. Both provisions establish mechanisms for resolving litigation before trial, but each serves a different end. Section 437c allows trial courts to eliminate needless trials when no issue of material fact exists and a party is entitled to judgment as a matter of law, either because “the action has no merit or... there is no defense to the action....” (§ 437c, subds. (a) & (c); Aguilar, supra, 25 Cal.4th at p. 843.) Section 998, by contrast is a cost-shifting provision designed to encourage settlement by punishing a party who fails to accept a reasonable settlement offer. (See § 998; Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268; Guzman, supra, 71 Cal.App.4th at p. 1375.) An order granting summary judgment therefore reflects a determination by the trial court that an action or defense has no merit, while a compromise under section 998 “reflects the settling parties’ temporal resolution of the risks of suit as between them.” (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 667 (Pazderka).) Allowing the use of section 998 to “trump” a prior disposition on the merits, as plaintiff seeks to do here, would nullify section 437c, giving pointless effect to one provision at the expense of the other. We do not believe the Legislature intended section 998 to revive a case the trial court has deemed meritless, so that the losing party can force the other to compromise it instead. Our holding serves the purpose of section 998, while giving equal effect to section 437c, allowing each to serve the purpose for which it was enacted.
We conclude that the order granting summary judgment terminated plaintiff’s power to accept defendants’ offer and that his purported acceptance of the offer did not form a valid compromise agreement. In so holding, we deem it of no significance that the trial court had not yet entered judgment when plaintiff served notice of acceptance. The trial court’s issuance of the order granting summary judgment and disposing of all the issues between the parties constitutes the rendition of judgment. (See Hayward Union etc. School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 114.) All that remained was the ministerial act of formally entering judgment on the order. (Ibid.)
This case is therefore distinguishable from Guzman, which addressed the effectiveness of a section 998 offer after a tentative ruling granting summary judgment. (See Guzman, supra, 71 Cal.App.4th at p. 1378.)
Plaintiff contends that the statutory language is clear and we may not rewrite it to conform to an assumed intent not apparent in the language. (See In re Hoddinott (1996) 12 Cal.4th 992, 1002; City of Sacramento v. Public Employees’ Retirement System (1994) 22 Cal.App.4th 786, 793.) He asserts that, under the statute, defendants’ offer remained open for 30 days or until trial began, unless revoked or rejected. These contentions have no merit. “ ‘ “[T]he ‘ “plain meaning” ’ rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose....” ’ ” (Berg, supra, 120 Cal.App.4th at pp. 728−729.) Moreover, section 998 does not purport to limit the events affecting an offer’s duration. “ ‘ “If the terms of the statute provide no definitive answer, then courts may resort to extrinsic sources... ” ’ ” and “ ‘ “[s]elect the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute and avoid an interpretation that would lead to absurd consequences”....’ ” (Berg, supra, at p. 729.) Plaintiff maintains, nonetheless, that the Legislature’s express inclusion of specific events triggering the withdrawal of an offer shows it intended to preclude termination by any other event. (See Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 991.) The rule of statutory construction on which he relies is “no more than a rule of reasonable inference,” which permits an inference as to the Legislature’s intent, but does not conclusively establish it. (Ibid.) The offer remained open subject to acceptance only as long as there was an existing case in which to effectuate the acceptance. Granting summary judgment terminated the case.
Plaintiff also discounts our policy concerns, contending a defendant has complete control over the timing and conditions of his offer and must expressly provide for termination of the offer in the event the trial court grants summary judgment. We observe that defendants could not have waited indefinitely for the trial court’s ruling before serving their offer in this case, as trial was set for December 1, 2008. We will not force parties awaiting a summary judgment ruling shortly before trial to choose between the risk of being held to a settlement offer even if they prevail and foregoing the cost-shifting benefits of section 998 altogether. We also are not persuaded that defendants must expressly condition their offers to avoid being bound after disposition of the case. The authority on which plaintiff relies is inapposite, as it relates to the terms of an offer, which are not in dispute here. (See Premium Commercial Services Corp. v. National Bank of California (1999) 72 Cal.App.4th 1493, 1496 [failure to include attorney fee provision]; Pazderka, supra, 62 Cal.App.4th at p. 671 [same].) We question whether an offer so conditioned would have been valid in any case. (See Marina Glencoe, L.P. v. Neue Sentimental Film AG (2008) 168 Cal.App.4th 874, 880 [“In order to function as an offer for purposes of section 998, an offer must remain open for the statutorily designated period...”].) Contrary to plaintiff’s assertion, we are not “insert[ing] such a condition” into defendants’ offer. We simply conclude that when the case ended by the granting of summary judgment, so did plaintiff’s power of acceptance.
Finally, we reject plaintiff’s contention that the trial court had a ministerial duty requiring the entry of judgment under section 998 upon the filing of proof of acceptance of defendants’ offer, even if no agreement was formed. He maintains that the trial court had no authority to determine the agreement’s validity before doing so. We disagree. Although we recognize the need to preserve the “straightforward and expedited procedure” of section 998 (see Berg, supra, 120 Cal.App.4th at p. 727), we do not believe that, in providing for the entry of judgment under this provision, the Legislature intended to force trial courts to ignore a prior disposition on the merits or turn a blind eye to its misuse.
Plaintiff relies on Saba v. Crater (1998) 62 Cal.App.4th 150, 153 (Saba), in which the court noted only that “[t]he entry of judgment pursuant to section 998 is merely a ministerial act which may be performed by the clerk of the court.” He also misconstrues the court’s meaning in Pazderka when it stated that “[a]t no time during the entire process leading to entry of a section 998 judgment does a judge or jury ever consider the validity of the agreement.” (See Pazderka, supra, 62 Cal.App.4th at p. 667.) The court’s point was that there is no adjudication of how accurately a compromise under section 998 reflects the merits of the case. (Id. at p. 667.) These casesare distinguishable, as they address a trial court’s authority to adjudicate a dispute regarding the terms of an offer, not an agreement’s validity. (See Pazderka, supra, at pp. 663−664, 672 [attorney fees]; Saba, supra,atp. 153 [same].)
As plaintiff is not entitled to judgment under section 998, the trial court properly denied his motion to set aside the summary judgment.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for further proceedings. The trial court’s order denying plaintiff’s motion to set aside the summary judgment (§ 663) is affirmed. Each party shall bear its own costs.
We concur: Margulies, J.,_Banke, J.