Motel 6 Operating L.P.
Filed
7/16/13 Neiman v. Motel 6 Operating L.P.
CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
PHILLIP NEIMAN et al.,
Plaintiffs and
Appellants,
v.
MOTEL 6 OPERATING L.P.,
Defendant and
Respondent.
F064476
(Fresno
Super. Ct. No. 10CECG01165)
APPEAL from
a judgment of the Superior Court of
County. Bruce M. Smith, Judge.
Miller
& Ayala and Nathan S. Miller for Plaintiffs and Appellants.
Farmer Case
Hack & Fedor, Farmer Case & Fedor, John M. Fedor and Keith S. Ciceron
for Defendant and Respondent.
-ooOoo-
INTRODUCTION
Appellant/plaintiff
Phillip Neiman (plaintiff), sued respondent/defendant Motel 6 (defendant)
for personal injuries he suffered in an attack by a third party assailant in
his motel room.
title="">[2] Plaintiff alleged that defendant’s lack of
security was the legal cause of his injuries.
The trial court granted summary judgment, determining that defendant
owed plaintiff no duty to hire security guards or install security cameras
because no sufficiently similar prior incidents had occurred on defendant’s
premises. While we question the trial
court’s ruling, we do not definitively resolve the issues of foreseeability and
duty. Instead, we hold that plaintiff
failed to raise a triable issue of
material on the element of causation.
(See Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763 (Saelzler).) We therefore affirm, albeit on different
grounds than cited by the trial court.
(See Code Civ. Proc., § 437c, subd. (m)(2).)
BACKGROUND
On July 16,
2009, plaintiff returned to Motel 6 after getting breakfast.
Leroy Johnson (Johnson) walked toward him.
Johnson did not display a threatening manner, and plaintiff did not
consider him a threat. Plaintiff and
Johnson commented on the weather as they walked toward each other. Johnson eventually began walking
approximately 10 feet behind plaintiff.
As plaintiff reached the door of his room, Johnson told him it was a
robbery and told plaintiff to open the door.
Plaintiff believed Johnson was holding a gun concealed in his shirt (but
never saw a gun), and opened the door to the room. Once inside the room, Johnson demanded
plaintiff’s money and eventually beat him.
Plaintiff’s
complaint alleges that he sustained severe injuries requiring more than 500
stitches when assailant beat plaintiff with a towel rack, slashed his throat
with a broken piece of tile, and “partially†cut off his finger. Plaintiff further averred that the attack
occurred because defendant failed to provide security, and that video
surveillance “would have had the effect of detouring [sic] the attacker.â€
The “Duty Motionâ€
Defendant
moved for summary judgment on the grounds that it owed no tort duty to protect
plaintiff from the criminal acts of third parties (the “duty motionâ€). The hearing was initially noticed for August
11, 2011. The court continued the
summary judgment hearing on the basis that facts essential to justify
opposition to the motion may exist but could not be presented at that
time. (§ 437c, subd. (h).) The court’s order permitted the parties to
submit a supplemental opposition and a supplemental reply. Plaintiff filed a supplemental opposition on
November 22, 2011, and the hearing was ultimately held on December 21-22, 2011.
In
opposition to the duty motion, plaintiff argued that prior incidents had
occurred at or near the Motel 6 that were sufficiently similar to the attack on
plaintiff. This, plaintiff argued, made
the attack on him foreseeable and created a duty to provide security under
(1993) 6 Cal.4th 666 (Ann M.),
disapproved on other grounds by Reid v.
Google (2010) 50 Cal.4th 512 and its progeny.
Alleged Prior Incidents
In a supplemental opposition, plaintiff
cited three alleged prior incidents.
First, on July 2, 2008, a transient
hit a motel guest named Douglas Dale Parks with a wine bottle (the “Parks
incidentâ€). A couple days prior, the
victim had seen the same transient break a wine bottle on the ground and then
“scream[]†at the shattered pieces.
Second, plaintiff offered the
deposition testimony of an Officer Garcia who recounted what victim Jose Zavala
told him about an alleged prior incident.
Two individuals entered the victim’s room under false pretenses. One of the individuals had a firearm. They tied up the two victims with bed sheets
and stole a DVD player and a wallet from the room (the “Zavala incidentâ€).
Third, Jessica Hinojosa described a
prior incident at defendant’s premises in a declaration. At approximately 2:30 a.m. on the morning of
June 6, 2006, Hinojosa and another female were in their motel room when they
heard a knock at the door. The man at
the door asked to use their telephone.
Hinojosa opened the door, and the man tried to push the door. Hinojosa and her friend attempted to force
the door closed. While he was trying to
force the door open, the man pulled out a gun, pointed it at Hinojosa and told
her and her friend to lie on the bed.
Two other men entered the room. One of the men struck Hinojosa on her
face. The men used bed sheets to tie up
the girls and left them in the bathroom.
When the girls exited the bathroom, they discovered that the men had
left and had stolen their belongings (the “Hinojosa incidentâ€).
Plaintiff also offered other
evidence of criminal activity at or near the defendant’s premises. Officers testified that prostitution, drug
dealing and gang activity were present at and near the Motel 6. Plaintiff introduced Fresno Police Department
call logs, which contained 348 entries pertaining to defendant’s motel.
The “Causation Motionâ€
Prior to
the date of the continued hearing on the initial summary judgment motion,
Defendant filed another motion for summary judgment. This second motion was made on the grounds
that defendant’s alleged negligence was not the legal cause of plaintiff’s
injuries (the “causation motionâ€). The
motion was noticed for the same hearing date as the duty motion.
The Trial Court’s Ruling
The trial court granted the duty motion,
finding that the prior incidents were not sufficiently similar to the attack on
plaintiff to create a duty. The trial
court did not rule on defendant’s evidentiary objections, “because even
assuming all of Plaintiff’s proffered evidence is admissible, it still fails to
establish foreseeability and duty.†The
trial court deemed the causation motion “moot†and did not rule on it. Plaintiff appeals from the ensuing judgment.
ANALYSIS
We review the grant of summary
judgment de novo. (Rey v. Madera Unified School Dist. (2012) 203 Cal.App.4th 1223,
1231 (Rey).)
pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving
party’s showing has established facts which negate the opponent’s claim and
justify a judgment in the moving party’s favor.
When a summary judgment motion prima facie justifies a judgment, the
third and final step is to determine whether the opposition demonstrates the
existence of a triable issue of material fact.â€
(Hutton v. Fidelity National Title
Company (2013) 213 Cal.App.4th 486, 493-494.) Throughout this process we look to the record
before the trial court, liberally construing evidence in support of the party
opposing summary judgment. (
203 Cal.App.4th at p. 1231.)
I.
DUTY
“It is
now well established that California law requires landowners to maintain land
in their possession and control in a reasonably safe condition. In the case of a landlord [or landowner], this
general duty of maintenance, which is owed to … patrons, has been held to
include the duty to take reasonable steps to secure common areas against
foreseeable criminal acts of third parties that are likely to occur in the
absence of such precautionary measures.â€
(Ann M., supra, 6 Cal.4th at p. 674 [citations omitted].)
The issue in this case is not
whether the defendant-landowner owes plaintiff any
duty, but whether the scope of that duty includes the hiring
of security guards or the installation and monitoring of security cameras. (See Vasquez
v. Residential Investments, Inc. (2004)
118 Cal.App.4th 269, 280.)
Third party
criminal conduct cases have developed a unique foreseeability jurisprudence
compared to other tort contexts. As the
California Supreme Court has explained, “our cases analyze third party criminal
acts differently from ordinary negligence .…†(Wiener
v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1149 (
foreseeability analysis is largely a result of the ubiquity of criminal
activity in modern society. As our
Supreme Court has observed:
“Unfortunately, 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.†(Ann M., supra, 6 Cal.4th
at p. 678.) Moreover, “if a criminal
decides on a particular goal or victim, it is extremely difficult to remove his
every means for achieving that goal.†(
Therefore, a plaintiff must show
“heightened foreseeability†when asserting that a defendant-landowner owed a
duty to protect patrons against third party criminal conduct by activating and
monitoring security cameras or providing security guards. (Delgado
v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243, fn. 24 (
rarely, if ever, can be proven in the absence of prior similar incidents of
violent crime on the landowner’s premises.†(Ann M.,
supra, 6 Cal.4th at p. 679, fn.
omitted.)
Plaintiff cites a number of prior
incidents at the Motel 6, the most compelling of which is the Hinojosa
incident. Defendant argued, and the
trial court agreed, that the Hinojosa incident was not sufficiently similar to
the assault on plaintiff to support foreseeability. We are dubious of this conclusion.
Prior similar criminal incidents
need only be similar, not
heightened foreseeability. (
Here, there are significant similarities between the criminal conduct at
issue in each incident. Both Hinojosa
and plaintiff were subjected to violence during their respective assaults. In each incident, an assailant used the
threat of shooting the victim to gain access to their motel room. Both crimes were armed robberies where the
assailants stole valuables from the victim (i.e., Hinojosa’s “belongings†and
plaintiff’s $150 in cash). In sum, both
the prior and current incidents share the same “operative facts†– they were
violent robberies where the perpetrator gained access to the victim’s motel
room by threatening to shoot the victim.
However, we need not decide this
issue conclusively nor address the parties’ contentions on the issue of duty,
as we affirm on alternate grounds, post.
II.
CAUSATION
A.
CONSIDERATION OF GROUNDS FOR SUMMARY JUDGMENT NOT RELIED
UPON BY THE TRIAL COURT
That plaintiff’s assault may have
been foreseeable is not dispositive.
Here, defendant also moved for summary judgment on the issue of
causation. Because the trial court
granted the duty motion, it deemed the causation motion moot. Nonetheless, we must consider the issue of
causation on appeal in accordance with our duty to uphold summary judgment if
it is correct on any ground, regardless of the reasons relied upon by the trial
court. (Montgomery v. Cal Accountants Mutual Ins. Co. (1998) 61 Cal.App.4th
854, 859.) “We will affirm an order
granting summary judgment or summary adjudication if it is correct on any
ground that the parties had an adequate opportunity to address in the trial
court, regardless of the trial court’s stated reasons.†(Securitas
Sec. Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115,
120.) Thus, even when the trial court
does not rule on an argument properly presented in summary judgment
proceedings, we may nonetheless consider it on appeal. (Gordon
v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 255. See also WRI
Opportunity Loans II LLC v. Cooper (2007) 154 Cal.App.4th 525, 541, fn.
12.)
If the papers show that the moving
party is entitled to judgment as a matter of law, and there is no dispute of
material fact, issuance of summary judgment is mandatory. (Saldana
v. Globe-Weiss Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512. See also § 437c, subd. (c).)
Both parties submitted briefs on
causation in response to our supplemental briefing letter. (See § 437, subd. (m)(2).)
PLAINTIFF DID NOT RAISE A TRIABLE ISSUE OF FACT ON
CAUSATION
With respect to causation, plaintiff’s
first amended complaint alleges that the attack occurred “due to the failure of
the Defendant to provide any security,â€
and that video surveillance would have deterred
the attacker.
In order to raise a dispute of
material fact, plaintiff was not required to conclusively prove causation. Instead, he had to
produce evidence raising a triable issue on whether there is “some substantial
link or nexus between omission and injury.â€
(Saelzler,
He failed to do so.
On review of summary judgment, we
independently determine the legal effect of the evidence and the undisputed
facts. (Lincoln Fountain Villas Homeowners Ass’n v. State Farm Fire & Cas.
Ins. Co. (2006) 136 Cal.App.4th 999, 1010, fn. 4; Jimenez, supra, 130 Cal.App.4th
at p. 140.) The undisputed facts
conceded by plaintiff establish the following:
Plaintiff exited his vehicle and Johnson walked toward him. Johnson did not display a threatening manner
and plaintiff did not consider him a threat.
Plaintiff and Johnson commented on the weather as they walked toward
each other. Johnson was “very friendlyâ€
and “very congenial.†Johnson eventually
began walking approximately 10 feet behind plaintiff. Plaintiff and Johnson continued friendly idle
chatter as plaintiff walked towards his room.
As plaintiff reached the door of his room, Johnson told him it was a
robbery and told plaintiff to open the door.
Plaintiff believed Johnson was holding a gun concealed in his shirt, and
opened the door to the room. Plaintiff
never saw a gun. It took plaintiff less
than three seconds to unlock and open the door and enter the room. Once inside the room, Johnson demanded
plaintiff’s money and eventually beat him.
In total, it took plaintiff between 55 to 75 seconds to go from his car
to his motel room.
Plaintiff did not dispute these
facts. Plaintiff provided no
contradictory evidence suggesting that Johnson acted in a manner that would
have aroused the suspicions of a security guard or someone monitoring surveillance
footage. That is, plaintiff has not made
any showing “that roving guards would have … prevented the attack.†(Saelzler,
supra, 25 Cal.4th at p. 777.) Because he was opposing a motion for summary
judgment, plaintiff needed only to raise a triable issue of material fact on
this issue. He failed to do so.
Instead of raising a triable issue
of fact on causation by producing evidence of how security guards or cameras
would have prevented the specific
assault that injured him,
plaintiff offers the speculative allegations contained in his complaint and
expert’s declaration.
Plaintiff’s discovery responses are
likewise speculative and devoid of pertinent facts. An interrogatory was posed to plaintiff,
requiring he state all facts that supported his contention that security
cameras would have prevented the assault.
After incorporating preliminary statements and general objections, he
responded: “Unfortunately, there was no
video surveillance monitoring Defendant’s premises which would have had the
affect [sic] of detouring [
conditions that led to Plaintiff’s assault.â€
Instead of citing facts, plaintiff merely restated his conclusory
causation allegations. A plaintiff’s
boilerplate restatement of allegations in response to interrogatories seeking
all known facts is prima facie evidence that there is no dispute of material
fact regarding causation. (See
Cal.App.4th 96, 106-107.)
Plaintiff first attempts to
distinguish unfavorable authority by
noting that his complaint alleges causation (i.e., that video surveillance,
security guards or even “the slightest security measures†would have prevented
the attack). As this court has
repeatedly held, a plaintiff may not rely on the allegations of his complaint
in opposing summary judgment. (
1591, 1594.) The purpose
pierce the allegations of the pleadings to determine whether a viable cause of
action exists. (Craig v. Earl (1961) 194 Cal.App.2d 652, 655.)
That plaintiff’s expert declaration
reiterates the complaint’s speculative causation allegations does not alter our
conclusion. (See Saelzler, supra, 25
Cal.4th at p. 781.)
When opposing
summary judgment,
“ ‘It is
not enough to produce just some evidence.
The evidence must be of sufficient quality to allow the trier of fact to
find the underlying fact in favor of the party opposing the motion for summary
judgment.’ Notably, ‘[p]laintiffs cannot
manufacture a triable issue of fact through use of an expert opinion with
self-serving conclusions devoid of any basis, explanation or reasoning.’ ‘[A]n expert’s opinion rendered without a
reasoned explanation of why the underlying facts lead to the ultimate
conclusion has no evidentiary value because an expert opinion is worth no more
than the reasons and facts on which it is based.’ †(Andrews,
138 Cal.App.4th at p. 108 (citations omitted).)
Plaintiff’s expert declaration
expounds on the unremarkable notion that certain security measures can reduce
crime rates generally. But, that is not
the showing plaintiff was required to make in opposing summary judgment. Merely extolling the virtues of deterrent
measures does not suffice to show that any particular crime would have been
prevented. “Again, though one can
generalize that increased security patrols probably would have lessened the
incidence of crime in the complex, we can never know whether they would have
prevented the attack on appellant.†(
(dis. opn. of Neal, J.).) Plaintiff
needed to raise a triable issue of fact as to whether this specific crime would have been prevented by security cameras
or guards.
Instead, he offered his expert’s
speculative conclusions:
“Had Defendant’s
[sic] made even a minimal effort to
institute reasonable crime prevention measures at the motel, the robbery and
assault on Plaintiff could most certainly have been prevented.â€
The declaration provides no factual
basis for this assertion. Not all crimes
are
preventable. “No one
can reasonably contend that even a significant increase in police personnel
will prevent all crime or any particular crime.†(Noble
v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918 (
As our high court has stated, “ ‘surveillance cameras do not
deter all crime,’ â€
(Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1198,
and “assaults … can occur despite the maintenance of the highest level of
security.†(Saelzler, supra, 25
Cal.4th at p. 777.) It is a non
sequitur to conclude that because some security measures prevent some crimes,
therefore “any security†would have prevented this crime. That is why
these types of bare assertions are insufficient to raise a triable issue of
fact on causation. Rather, a plaintiff
must raise a triable issue of fact through non-speculative evidence that the
absence of specific security measures “caused, or substantially contributed toâ€
the specific incident at issue.
(Cf. id. at p. 780.)
In sum, “[t]he evidence at hand …
merely shows the speculative possibility that additional daytime security
guards … might have prevented the assault.
Plaintiff’s evidence is no less speculative because []he offered a
security expert’s testimony.†(
BREACH OF DUTY AND CAUSATION ARE SEPARATE ELEMENTS
Plaintiff acknowledges in
supplemental briefing that Saelzler “has
several similarities to the case at hand.â€
Yet, plaintiff seeks to distinguish Saelzler,
by arguing: “In the case at hand, unlike
[in] Saelzler, the issue is not that
the defendant had inadequate security, the issue is that the defendant had no
security of any kind. (Italics added.)â€
Saelzler
rejected this contention and, therefore, so do we. The Court of Appeal in Saelzler had held, much as plaintiff argues now, that “[w]hen a
property owner supplies no security whatsoever … logic and common sense tell us
absence of security is a contributing cause of most crimes occurring on that
property.†(Saelzler v. Advanced Group 400, supra,
77 Cal.App.4th at p. 1014, Saelzler,
Appeal, and rejected this rule because it would have precluded summary judgment
on the element of causation whenever a defendant-landowner fails to adopt
security measures. (Salzler, supra, 25
Cal.4th at p. 778.)
At its core, plaintiff’s argument
confuses breach of duty with causation, which are separate tort elements. (See Saelzler,
supra, 25 Cal.4th at pp. 773,
780.) Assuming Motel 6 owed and breached
a duty of care to plaintiff, he nonetheless cannot prevail unless he shows the
breach bore a causal connection to his injury.
(Id. at p. 773 [“…assuming the
defendant owed and breached a duty of care to the plaintiff, she nonetheless
cannot prevail unless she shows the breach bore a causal connection to her
injury.â€])
“
or omission might appear, the plaintiff must nonetheless show the act or
omission caused, or substantially contributed to, her injury. Otherwise, defendants might be held liable
for conduct which actually caused no harm, contrary to the recognized policy
against making landowners the insurer
[italics original] of the absolute safety of anyone entering their
premises. [Citations.]†(Id.
at p. 780, italics added.)
CONCLUSION
To paraphrase Noble, supra, 168
Cal.App.3d 912, this is “a classic example of a plaintiff establishing what
could be described as abstract negligence, in the context that [defendant’s]
security didn’t comport with plaintiff’s expert’s … notion of ‘adequacy,’ but
failing to†produce evidence of a “causal connection between that negligence
and the injury.†(Id. at p. 918.) “To
characterize a landowner’s failure to deter the wanton, mindless acts of
violence of a third person as the ‘cause’ of the victim's injuries is (on these
facts) to make the landowner the insurer of the absolute safety of everyone who
enters the premises.†(
DISPOSITION
The
judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Gomes, Acting P.J.
_____________________
Franson, J.
Plaintiff’s original and amended
complaints name “Motel 6†as defendant.
Motel 6 Operating L.P. answered the original complaint as “Motel 6
Operating L.P. (erroneously sued as ‘Motel 6’).â€
Plaintiff initially sued Accord Lodging
North America, but subsequently dismissed that party without prejudice.
