Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC094809, Raul A. Sahagun, Judge.
Mehr & Alvandi and Eric Ryanen for Plaintiffs and Appellants.
The Law Offices of Martin D. Holly and Martin D. Holly for Defendants and Respondents.
JACKSON, J.
INTRODUCTION
Plaintiffs Mariah, Reyes and Marissa Garcia, through their guardian ad litem Sacheen Garcia, appeal from a summary judgment in favor of defendants Oceans Sports Bar, Inc. and its principal, Frederick Alanis (Alanis, collectively Oceans or defendants). We affirm.
FACTS
Plaintiffs’ father, Reyes A. Garcia (Garcia) worked as a doorman/bouncer at Oceans, located at 14302 Telegraph Road in a strip mall in the City of Whittier. On February 9, 2007, Jose Nunez (Nunez) shot and killed Garcia in the strip mall parking lot. On October 27, 2008, Nunez was convicted of the first degree murder of Garcia.
Bouncers at Oceans started work at 8:00 or 9:00 p.m. and worked through last call, about 1:30 a.m. The manager of the bar, Gerard Pepe (Pepe), directed the bouncers as to where to post themselves. As part of their duties, the bouncers patted down patrons entering the bar to make sure they were not carrying weapons. They patrolled inside the bar, making sure there were no fights or illegal activities. When necessary, they escorted or physically removed drunk or disorderly patrons from the bar. They made sure patrons left the bar after last call.
Due to complaints from Oceans’ neighbors, Alanis and Pepe told the bouncers to patrol the parking lots, including the strip mall parking lot. They were to stop people from loitering and drinking and to dispose of beer bottles. They were to patrol the lots periodically throughout the evening. Oceans did not own the strip mall parking lot.
On the evening of February 9, 2007, Garcia was patrolling the strip mall parking lot. He went to speak to a group of men, which included Nunez, who were drinking in the parking lot near their car. There was an argument, and then a fight. Nunez got a gun from the car and started firing. He shot and killed Garcia.
Oceans was unaware of any violent crimes in the area before Garcia was killed.
PROCEDURAL BACKGROUND
In plaintiffs’ operative first amended complaint, they alleged that Oceans employed Garcia under an oral employment agreement. By virtue of this agreement, Oceans was required to carry worker’s compensation insurance. It did not carry the insurance, however.
Plaintiffs alleged that while Garcia was working at Oceans on February 9, 2007, a group of men in gang attire attempted to enter Oceans. Oceans had instructed Garcia not to allow people in gang attire to enter the bar but rather to make certain that such people left the property. Oceans did not provide him with any training or equipment to ensure his safety when doing so, however.
Plaintiffs alleged that when the men attempted to enter Oceans, Garcia told them to leave the bar and parking lot. A few minutes later, he went outside to make sure they had done so. While Garcia was in the parking lot, Nunez, who was one of the men who Garcia had kept out of the bar, shot and killed Garcia.
Defendants moved for summary judgment or, in the alternative, summary adjudication of issues. They sought adjudication that Garcia was not an employee of Oceans; Oceans did not own or control the property on which Garcia was killed; Oceans did not owe Garcia a duty to protect him from Nunez’s unforeseeable criminal acts; Oceans did not breach any duty to Garcia; and Oceans’ acts or omissions were not the proximate cause of Garcia’s death.
Plaintiffs opposed the motion on the ground defendants did not carry workers’ compensation insurance and therefore were presumptively negligent. They argued that the evidence showed Garcia was defendants’ employee, Garcia was killed while he was working for defendants, and since defendants did not carry workers’ compensation insurance, they could be held civilly liable for Garcia’s death. Plaintiffs further argued that defendants were negligent in training and equipping Garcia for his work, rendering them liable for his death.
The trial court granted the motion for summary judgment. The court found it unnecessary to resolve the question whether Garcia was an employee or an independent contractor. It was undisputed that “Garcia was shot and killed by a third party, who was subsequently convicted of first degree murder.” It also was undisputed that the murder “occurred in a strip mall parking lot which [defendants] did not own.” It was disputed however, whether defendants controlled the parking lot.
As to defendants’ liability for negligence, the trial court noted that plaintiffs alleged that defendants “negligently caused a danger[ous] condition (the presence of armed men) and ‘did not provide [Garcia] with the knowledge, training, education or equipment to keep himself safe and healthy’ when instructing people to leave the bar and parking lot.... The allegations define the scope of the duty under consideration.”
However, the court pointed out, plaintiffs presented no evidence supporting the imposition of such a duty. They presented no evidence showing that the lack of training “causally contributed” to Garcia’s death. They also presented no evidence Garcia’s death was foreseeable. While plaintiffs presented evidence of crimes in the area, most occurred at a nearby hotel and involved fighting, and defendants were unaware of them. There were no violent attacks similar to the one which resulted in Garcia’s death near Oceans. The court noted “that where harm can be prevented by simple means, [as here, ] a lesser degree of foreseeability may be required [to impose liability]. However, where there are no prior, similar incidents or other indications of a risk of violent criminal attacks, there is simply nothing upon which the Court can base a finding of foreseeability.”
The court concluded that even if the Labor Code presumption applied, defendants met their burden of proving a lack of negligence. Therefore, they were entitled to a summary judgment.
DISCUSSION
Summary judgment properly is granted if there is no question of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show 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); Aguilar, supra, at p. 849.) The defendant must “demonstrate that under no hypothesis is there a material factual issue requiring a trial.” (Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) The plaintiff may not rely on his or her pleadings to meet this burden (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849), except to the extent they are uncontested by the opposing party (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626). All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
On appeal, we review a summary judgment de novo. (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368.) We must identify “the issues framed by the pleadings, determine whether the moving party has negated the nonmoving party’s claims, and determine whether the opposition has demonstrated the existence of a triable issue of material fact.” (Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 763.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.) We will reverse the judgment if the trial court has erred, “either in failing to find a triable issue of fact where there is one, or in failing to apply undisputed facts to a correct principle of law.” (Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1401.)
Plaintiffs direct the majority of their argument to the question of Garcia’s status as an employee or independent contractor and the requirements for employee training contained in the Labor Code. Assuming arguendo plaintiffs’ argument is correct, the question remains, as the trial court found, whether defendants presented evidence rebutting the presumption of negligence and whether plaintiffs presented evidence showing a triable issue of fact as to whether defendants were negligent. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849; Huang v. L.A. Haute (2003) 106 Cal.App.4th 284, 289.)
The cases plaintiffs cite hold that, in determining the question of duty, “the foreseeability required to warrant raising a duty on the premises owner to take protective measures against third party violence” is heightened “beyond the general foreseeability of the risk of harm.” (Hassoon v. Shamieh (2001) 89 Cal.App.4th 1191, 1195.) The reason for this heightened requirement is that “‘random, violent crime is endemic in today’s society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable.’” (Ibid., quoting Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678.)
Hassoon v. Shamieh, supra, 89 Cal.App.4th 1191 was disapproved in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 at page 244 “to the extent [it] suggests that a showing of heightened foreseeability is required in all premises liability cases-regardless of the extent of the burden sought to be imposed upon the defendant.”
In Castaneda v. Olsher (2007) 41 Cal.4th 1205, the plaintiff was shot in the course of a gang confrontation involving a neighbor in the mobile home park in which he lived. (Id. at p. 1209.) One of the bases on which he sought to impose liability on the owners of the park was that the owners had a duty not to rent to gang members. Due to the difficulty of determining with certainty who was a gang member and the possible liability in refusing to rent to people who were suspected of being gang members, the court “decline[d] to impose such a burdensome, dubiously effective and socially questionable obligation on landlords, at least absent circumstances making gang violence extraordinarily foreseeable.” (Id. at p. 1217.)
It is such circumstances which are absent in the instant case. Plaintiffs claim they presented “scant evidence of prior, substantially similar crimes at the bar, or in the neighborhood of the bar, ” and that is sufficient to raise a triable issue of fact as to foreseeability and thus duty. The evidence they cite is police reports of various crimes occurring in and in the vicinity of Oceans, including fights and a drive-by shooting at a nearby motel, and drunk or disorderly patrons who had to be removed from the bar. Plaintiffs point to no evidence of any prior altercations between Oceans’ bouncers and gang members or others who had been refused admittance into the bar or who were drinking or loitering in the parking lot near the bar.
In other words, plaintiffs’ evidence is of the “random, violent crime [that] is endemic in today’s society.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678; Hassoon v. Shamieh, supra, 89 Cal.App.4th at p. 1195.) Plaintiffs presented no evidence of circumstances making the type of violence which occurred here “extraordinarily foreseeable.” (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1217.)
Even applying a lesser degree of foreseeability, the foreseeability requirement was not met here. There is no evidence of any previous incidents or threats of violence which would suggest that a bouncer patrolling the parking lot would be shot in the course of that activity.
Plaintiffs suggests that the fact “there were any prior crimes, at all” supports the imposition of a duty. They argue that “‘[p]olice officers are called upon to walk up to cars, in the [d]ark, to investigate whether criminal activity is afoot. So are security guards. Even though police officers and security guards are not hurt or killed when they approach cars, adequate training is, nonetheless, a job requirement. Here, however, defendants knowingly sent Mr. (Garcia) on a fools’ errand, without the tools or training to accomplish the task safely. And this is against the law.’”
Plaintiffs do not cite any evidence in the record that Garcia was a security guard or that his job was to investigate whether criminal activity was afoot. They cite no evidence that he was shot and killed because he walked up to a car in the dark to investigate potential criminal activity. Plaintiffs’ own separate statement of facts states only that the bouncers were “to look for and stop people from loitering, people from drinking and to police the area so as to dispose of beer bottles.” Plaintiffs cite nothing which suggests that it is foreseeable that a bouncer engaged in this activity would be shot by someone loitering or drinking in the parking lot.
In the absence of foreseeability, there is no duty. (Hassoon v. Shamieh, supra, 89 Cal.App.4th at p. 1195.) Absent a duty, there is no liability for negligence. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 673.) The trial court therefore properly granted summary judgment in favor of defendants. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
DISPOSITION
The judgment is affirmed. Defendants are to recover costs on appeal.
We concur: WOODS, Acting P. J., ZELON, J.