Marshall v. Playa L&M Enterprises

Filed 2/28/07 Marshall v. Playa L&M Enterprises CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from judgments of the Superior Court of Los Angeles County, Cary Nishimoto, Judge. Affirmed.

Kent Heeringa for Plaintiff and Appellant.

Gray York & Duffy and Michael S. Eisenbaum for Defendants and Respondents Playa L&M Enterprises, Decron Properties Corporation and Furama Hotel LA.

Cooper, Phillips & Peterson, Thomas M. Phillips, Michael A. Kramer, Pauliana Nadjarians and William G. Lieb for Defendant and Respondent Excellence Security Service, Inc.

_________________________

Plaintiff and appellant Edward James Marshall (Marshall) appeals judgments following grants of summary judgment in favor of defendants and respondents Playa L&M Enterprises (Playa), Decron Properties Corporation (Decron), Furama Hotel LA (Furama) (collectively, the hotel defendants) and Excellence Security Service, Inc. (Excellence) (collectively, defendants).

In this action against property owners and a security company for negligence based on their alleged failure to provide adequate security measures, the essential issue presented is whether a triable issue exists as to causation.

We conclude Marshall failed to present substantial evidence of a causal link between his injury and defendants failure to provide greater security. The opinion of Marshalls security expert that hourly security patrols probably would have prevented the attack rested on speculation and was insufficient to raise a triable issue as to causation. Therefore, the judgments are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Parties.

Furama is a hotel located at 8601 Lincoln Boulevard. Playa is the owner of the subject property, which consists of the hotel, retail stores and parking areas. Decron is the property manager. Excellence was hired by Decron to provide security services for the property.

2. Facts relating to the incident.

Prior to the incident, which occurred on June 23, 2003, Marshall had been sleeping in his car for approximately 10 years.

For the last two years, Marshall would park and sleep in his vehicle in the subject parking lot about three to four times per week, between the hours of 11:00 p.m. and 4:30 a.m.

Signs are plainly posted in the subject parking lot which read Retail Customer Parking Only, 2 Hour Limit, Lot Patrolled Regularly 24 Hours a Day, Violators will be Towed Immediately at Vehicle Owners Expense. However, the two-hour limit was not enforced.

Upon parking at the location to sleep, Marshall would immediately recline his seat so no one would see him.

On the night of the incident, Marshall parked his car at the location at about 11:00 p.m. About 20 or 25 minutes later, Marshall was approached by two assailants. When one of the men attempted to enter his vehicle, Marshall got out and swung his Club anti-theft device at one of them. Marshall began to run and was shot in the knee by one of the men. Marshall then used his cell phone to call 911.

About 20 seconds elapsed between the time the assailants approached the vehicle and the moment Marshall was shot.

The evidence showed that on the date of the incident, the parking lot was only patrolled once, at 5:01 p.m., during the eight-hour shift before the shooting.

3. Pleadings.

On October 15, 2004, Marshall filed this action, alleging a single cause of action against the hotel defendants and Excellence for negligence in failing to take reasonable security measures to protect customers and patrons on the premises from criminal activity. Marshall pled that defendants were aware that criminal activity, including armed robberies, aggravated assaults, auto thefts, burglary from autos and grand thefts had occurred on the premises and on adjacent property. Marshall asserted defendants were negligent in failing to: provide adequate lighting; provide proper security; warn of criminal activities; adequately hire, train, supervise, control and manage security personnel on the premises; and take other reasonable precautions to protect customers and patrons from third party criminal activity, which defendants knew or should have known constituted a danger to Marshall.

The various defendants answered the complaint, denying the allegations and asserting various affirmative defenses, including, that if plaintiff sustained any injury or damages, such injury or damages were proximately caused and contributed to by the negligence of the plaintiff in that plaintiff failed to use reasonable care for his own safety.

4. Motions for summary judgment.

On June 23, 2005, the hotel defendants filed a motion for summary judgment, contending no duty was owed to Marshall once he chose to conceal himself and remain on the property to sleep in his car. Further, even assuming a duty was owed and that defendants breached their duty, such breach was not a substantial factor in Marshalls injury. They asserted, [t]he incident occurred too fast, leaving the defendants no opportunity to prevent or deter the attack.

On June 23, 2005, Excellence filed a separate motion for summary judgment, focusing on the issue of causation. Excellence asserted there was no evidence the attack on Marshall took place as a result of any act or omission of Excellences employees, and [i]t would be nothing but pure speculation to state that additional security guards or some other form of security could have prevented this altercation that occurred in less than twenty seconds.

In opposition, Marshall argued triable issues of fact exist as to whether defendants owed him a duty of care as a business invitee, in that on the night in question, he had been a paying customer and had bowled in the bowling alley in the complex until about 11:00 p.m. Marshall also contended defendants owed him a duty under the negligent undertaking doctrine, in that they voluntarily undertook to provide specific security services on the premises to deter crime.

Marshall also asserted numerous triable issues existed with respect to the element of causation. According to Marshall, defendants emphasis on the brevity of the incident was besides the point defendants had confused the duty to prevent criminal activity with a duty to stop an ongoing crime. Marshall averred defendants lax security was a substantial factor in his injuries, and a triable issue of fact existed as to whether it is more likely than not that the failure to patrol the parking lot was a substantial factor in the incident.

Marshalls opposition papers included a declaration from his security expert, Robert Feliciano (Feliciano), a former deputy sheriff, watch commander and sergeant with the Los Angeles County Sheriffs Department. Feliciano stated, inter alia, that based on his review of crime statistics records produced by Los Angeles Police Departments custodian of records, in the three years before this incident, the LAPD had responded to calls for service for the following criminal activities on the premises: 11 calls for robbery, 7 calls for battery, 3 calls for injury, 1 call for kidnapping, 10 calls for assault with a deadly weapon, and 2 calls for shots fired. The LAPD records also show the following violent crimes occurred on the premises during that time frame: 8 robberies, 5 batteries, 3 dead bodies, 1 homicide, 1 brandishing and 4 assaults with a deadly weapon.

5. Trial courts ruling.

On September 6, 2005, the motions came on for hearing and were taken under submission. The trial court then granted summary judgment in favor of all the defendants, ruling as follows:

Moving defendants have met their burden to show that an essential element of plaintiffs cause of action, namely, the causation element, cannot be established. Plaintiff has not met his burden to provide specific facts to show the existence of a triable issue of material fact as to his cause of action. [Citation.] As to both motions, there is no triable issue of material fact on the issue of causation. Plaintiff fails to set forth substantive, non-speculative evidence that an actual causal link existed between the injuries sustained by him and defendants alleged failure to provide adequate security on the premises. [Citation.] Here, plaintiffs injuries stemmed from an incident which occurred within a span of mere moments plaintiff estimating that the entire incident occurred within 20 seconds. There is no non-speculative evidence to show that the absence of guards, an alteration of the shift schedule, or a review and change of the duties of the guards employed by defendants would somehow [have] prevented this incident. How would security guards know to protect or warn plaintiff if he was intentionally concealing himself from security guards. Courts have recognized that landowners are not insurers of the safety of those who use the premises, and with the facts presented in the instant case it cannot be determined what reasonable level of security could have prevented this incident. [Citation.] With these facts, it is impossible to determine that another reasonable course of conduct by moving defendants would have prevented this quick, transitory and random attack that is, so unfortunately, a by-product of the nature of modern society. [Citation.] Also, plaintiff cannot rely on the mere speculative testimony of a security expert to establish facts sufficient to raise a triable issue. Plaintiffs security expert, under these facts, fails to show a nexus between the alleged inadequate security and plaintiffs apparent injuries. [Citations.]

[The hotel defendants] moved for summary judgment . . . on the additional basis that no duty is shown to have existed to plaintiff in this action and that the defendants did not breach any duty. Although the existence of a duty and the existence of a triable issue of material fact as to breach of duty are moot in light of the ruling on causation the court notes certain factors that might raise a triable issue of material fact as to whether defendants had a duty of care to plaintiff in this instance. However, in this regard, plaintiff failed to provide sufficient facts to show that a duty of care existed as to moving defendants in this case. [A] proprietor [] [has a] general duty of maintenance, which is owed to tenants and patrons, . . . includ[ing] 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. [Citation.] Courts have found that in the absence of prior similar incidents of violent crime on the premises, there will rarely be a duty imposed to hire security guards. [Citation.] Here, plaintiff has not provided sufficient evidence of prior incidents of criminal conduct on the premises. Plaintiffs attached Exhibit 6 merely consists of computer print outs and do not provide any coherent substantive information necessary to evaluate the nature of the alleged incidents, and their connection to the subject premises. Additionally, plaintiffs purported expert merely relied on this print-out to support his conclusion of the number of violent crimes on the premises Therefore, his declaration on this point is defective on the same basis. Also, it should be noted that merely because defendant provided security guards on the premises does not automatically show that defendants voluntarily assumed a duty. [Citation.] But, as noted, this issue is moot for purposes of the ruling on this motion.

Marshall timely appealed the judgments entered in favor of the hotel defendants and Excellence.

CONTENTIONS

Marshall contends the trial court erred in granting summary judgment because (1) defendants owed a duty of care, based on prior similar incidents and other grounds; and (2) a triable issue exists as to causation. Marshal also contends the trial courts ruling fails to comply with Code of Civil Procedure section 437c, subdivision (g), which requires the trial court to specify the evidence indicating the absence of a triable issue.^[1]

DISCUSSION

1. Standard of appellate review.

Summary judgment motions are to expedite litigation and eliminate needless trials. [Citation.] They are granted 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. [Citations.](PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)

A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A defendant has shown the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . . (Id. at p. 854.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Id. at p. 849.)

We review the trial courts ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)

2. Negligence principles.

Landowners are not insurers of public safety. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679.) An action against a landowner for negligence in failing to provide adequate security against third party criminal conduct requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. (Id. at pp. 673-674.)

3. Grant of summary judgment was proper because defendants established the absence of a triable issue as to the essential element of causation.

It is the plaintiffs burden to demonstrate that defendants alleged breach of duty was a proximate or legal cause of [his] injuries. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 (Sharon P.).) Assuming arguendo defendants owed and breached a duty of care to Marshall, he cannot recover unless [he] shows the breach bore a causal connection to [his] injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 773 (Saelzler).) To survive summary judgment, Marshall was obligated to show by nonspeculative evidence, some actual causal link between [his] injury and the defendants failure to provide adequate security measures (id. at p. 774), i.e., more frequent security patrols of the subject parking lot. As explained below, Marshall failed to meet his burden.

a. Pertinent case law.

In Sharon P., the plaintiff was criminally assaulted by an unknown assailant in an underground parking garage. She sued the garage owner for failure to provide adequate security measures for its tenants. The trial court granted summary judgment against her. Although Sharon P. was concerned with the question of the defendants duty to provide security guards and other security measures, it also spoke briefly on the separate subject of causation, observing that it was questionable whether plaintiffs proposed [security] measures would have been effective to protect against the type of violent assault that occurred here. (Sharon P., supra, 21 Cal.4th at p. 1196.) Sharon P. noted the courts have rejected claims of abstract negligence pertaining to the lighting and maintenance of property where no connection to the alleged injuries was shown. [Citations.] (Id. at pp. 1196-1197, fn. omitted, italics added.)

Sharon P., supra, 21 Cal.4th at page 1197, cited with approval three Court of Appeal cases holding that, assuming the defendant owed and breached a duty of care to the plaintiff, the plaintiff nonetheless could not prevail unless plaintiff showed the breach bore a causal connection to the injury. (Nola M.v. University of Southern California (1993) 16 Cal.App.4th 421, 435-439 ( Nola M.); Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211-212 ( Constance B.); Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 915-918 ( Noble).)

In Noble, the plaintiffs were assaulted in a parking lot at Dodger Stadium and sued the stadium owner on the theory it failed to provide adequate security for its patrons. At trial, the plaintiffs expert witness opined the owner should have employed more security guards to patrol the area, and the jury found for plaintiffs. The appellate court reversed, holding that abstract negligence, without proof of a causal connection between the defendants breach and the plaintiffs injury, is insufficient to sustain the award. (Noble, supra, 168 Cal.App.3d at pp. 916, 918.)

In Constance B., the plaintiff was assaulted at night in the restroom at a state highway rest area. The appellate court affirmed a grant of summary judgment in defendant states favor, holding the plaintiff, who saw her attacker watching her when she entered the restroom, failed to submit evidence showing that additional lighting would have prevented the attack. (Constance B., supra, 178 Cal.App.3d at pp. 211-212.) The court observed: If liability may be premised solely on this notion [that criminals are generally deterred by strong lighting], proprietors will become the insurers of the safety of persons on their premises, subject only to the caprice of particular juries. [Citation.] (Id. at p. 212.)

In Nola M., the plaintiff was raped on a college campus and sued the college on the theory it should have provided more campus security. On appeal from a judgment in the plaintiffs favor, the Nola M. court reversed. The court assumed for purposes of argument the plaintiff had submitted sufficient evidence that the defendant breached a duty of care toward her, but concluded that she failed to prove the breach was a legal cause of the assault. (Nola M., supra, 16 Cal.App.4th at pp. 427-428.) The court observed that to demonstrate legal causation, the plaintiff must show the defendants act or omission was a substantial factor in bringing about the injury. (Id. at p. 427.) Nola M. concluded the plaintiff must do more than simply criticize, through the speculative testimony of security experts, the extent of the defendants security measures, and instead must show the injury was actually caused by the failure to provide greater measures. (Nola M., supra, at p. 435.) The court observed that a different rule would make the landowner the insurer of the absolute safety of everyone who enters the premises. (Id. at p. 437.)

In addition to these three appellate cases cited in Sharon P., other California cases also support the rule that the plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiffs injury and the defendants failure to provide adequate security measures. (See Leslie G. [v. Perry & Associates (1996)]43 Cal.App.4th [472,] 480-488; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1276 [263 Cal.Rptr. 202] [characterizing as pure speculation expert testimony that absence of added security contributed to criminal assault]; Lopez v. McDonalds Corp. (1987) 193 Cal.App.3d 495, 515 [238 Cal.Rptr. 436] [restaurants failure to hire security guard not shown to have been substantial factor in causing injuries from gunmans attack].) (Saelzler, supra, 25 Cal.4th at p. 774.)

In Saelzler, a woman employed by Federal Express was assaulted on the grounds of an apartment complex by unknown assailants while attempting to deliver a package. (Saelzler, supra, 25 Cal.4th at p. 769.) She sued the property owners for negligence in failing to provide adequate security measures.

For purposes of its discussion, Saelzler assume[d] defendants breached [their] duty by failing (1) to keep all entrance gates locked and functioning, and (2) to provide additional daytime security guards to protect persons such as plaintiff. But the evidence fails to show that either breach contributed to plaintiffs injuries in this case. As Professors Prosser and Keeton observe, A mere possibility of such causation is not enough; and when the matter remains oneof 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. (Prosser & Keeton, Torts (5th ed. 1984) 41, p. 269, fns. omitted, italics added.) (Saelzler, supra, 25 Cal.4th at pp. 775-776.)

In Saelzler, the plaintiff admitted she could not prove the identity or background of her assailants. They might have been unauthorized trespassers, but they also could have been tenants of defendants apartment complex, who were authorized and empowered to enter the locked security gates and remain on the premises. The primary reason for having functioning security gates and guards stationed at every entrance would be to exclude unauthorized persons and trespassers from entering. But plaintiff has not shown that her assailants were indeed unauthorized to enter. Given the substantial number of incidents and disturbances involving defendants own tenants, and defendants managers statement that a juvenile gang was headquartered in one of the buildings, the assault on plaintiff could well have been made by tenants having authority to enter and remain on the premises. That being so, and despite the speculative opinion of plaintiffs expert, she cannot show that defendants failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. [Citations.] Put another way, she is unable to prove it was more probable than not that additional security precautions would have prevented the attack. (Leslie G. [v. Perry & Associates], supra, 43 Cal.App.4th at p. 488; see Prosser & Keeton, Torts, supra, 41, p. 269 [plaintiff must show it more likely than not defendants conduct was cause in fact of the result; mere possibility of such causation is not enough]; Rest.2d Torts, 433B, com. a, p. 442.) (Saelzler, supra, 25 Cal.4th at p. 776.)

b. Marshall failed to present substantial evidence of a causal link between his injury and defendants failure to provide greater security; the opinion of Marshalls security expert that more frequent security patrols probably would have prevented the attack is speculative.

In opposition to summary judgment, Marshall submitted the declaration of Feliciano, a former deputy sheriff, watch commander and sergeant with the Los Angeles County Sheriffs Department. In the declaration, Feliciano recited his background and credentials and indicated he had reviewed various materials including deposition transcripts, the LAPD investigation report of the incident, LAPD crime statistics for the premises, Excellence security guard daily activity reports and Excellences training manual.

With respect to whether defendants security measures were reasonable, adequate and prudent for the premises, Feliciano stated: Based upon my review of the Daily Activity Reports of the Excellence Security guards during June 2003 before the date of the incident, reveal that the guards on the swing and graveyard shifts consistently failed to perform the required detailed perimeter patrols at the beginning of their shifts, failed to do hourly patrols of the subject parking lot, and failed to do patrols at staggered times. My review of those same records, show that the guards averaged only 3 patrols of the subject parking lot after dark (between the hours of 8:00 pm and 6:00 am) or an average of less than one patrol every 3 hours.

Feliciano further stated: 9. Based on my experience, education, and training, violent crimes are more likely to occur after dark than in the daylight hours and are more likely to occur outside in a parking lot rather than inside in the buildings on the subject premises. [] . . . [] 14. Based upon my experience, training and education, it is my opinion that the single patrol of the parking lot (at 5:00 pm) between 2:00 pm and midnight [i.e., the failure of the Excellence Security guards to do the required hourly patrols and detailed perimeter patrols in the subject parking lot] on the date of the shooting (June 23, 2003) was insufficient to provide adequate security in the subject parking lot, was insufficient to deter criminal activity and was insufficient to keep unwanted personnel off the premises, and that adequate and reasonable security required at a minimum, hourly patrols at staggered times as well as detailed perimeter patrols as set forth in the Excellence Security Post Orders for the premises.

As for causation, which is our focus here, Feliciano opined, in paragraph 15 of his declaration: Based upon my education, training, experience and review of records and depositions herein, it is my opinion the failure of the Excellence Security guards to perform the hourly patrols and the detailed perimeter patrols, was a substantial factor in causing plaintiffs injuries. In other words, if Excellence Security had done the required patrols it is more probable than not that the subject incident would not have occurred. (Italics added.)

We note the trial court sustained Excellences objection to paragraph 15 of the Feliciano declaration on the ground it was speculation. Although Marshall takes issue with this evidentiary ruling, we perceive no error in this regard. Feliciano failed to furnish any specific explanation for his opinion as to causation. He did not explain why the performance of hourly patrols or perimeter patrols would have prevented this particular incident, other than to assert in conclusionary fashion that such security measures probably would have prevented the incident.

Feliciano asserted it is probable that hourly patrols and detailed perimeter patrolswould have prevented the incident. However, the assault on Marshall could have occurred even in the absence of any negligence in the performance of the patrols of the security officers. A patrol could have occurred just prior to the incident, with the assailants coming onto the property immediately thereafter, or the assailants simply could have waited until the security officers left the area before commencing their attack. Feliciano did not supply a reasoned explanation to support his contention that had patrols been done hourly, it is more probable than not that the subject incident would not have occurred.

Even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) When an experts opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an expert opinion is worth no more than the reasons upon which it rests. [Citation.] (Ibid.) When an expert opinion is offered on the issue of causation, the opinion must contain a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury. (Id. at p. 1118.) The Feliciano declaration was deficient in this regard.

Accordingly, we concur in the ruling of the trial court, which found, As to both motions, there is no triable issue of material fact on the issue of causation. Plaintiff fails to set forth substantive, non-speculative evidence that an actual causal link existed between the injuries sustained by him and defendants alleged failure to provide adequate security on the premises. [Citation.] Here, plaintiffs injuries stemmed from an incident which occurred within a span of mere moments plaintiff estimating that the entire incident occurred within 20 seconds. There is no non-speculative evidence to show that the absence of guards, an alteration of the shift schedule, or a review and change of the duties of the guards employed by defendants would somehow [have] prevented this incident.

4. Remaining issues not reached.

Because defendants established the absence of a triable issue as to causation, it is unnecessary to address any other issues raised by the summary judgment papers.^[2]

DISPOSITION

The judgments in favor of the hotel defendants and Excellence are affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] A trial courts failure to specify the reasons for its determination in accordance with Code of Civil Procedure section 437c, subdivision (g) is harmless if independent review establishes the validity of the grant of summary judgment. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)

^[2] Marshall contends for the first time on appeal that defendants owed him a duty as a third party beneficiary of the security contract between Decron and Excellence. The issue is not properly before this court. On summary judgment, the issues are framed by the pleadings. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Marshalls complaint did not allege his status as a third party beneficiary of the contract for security services (Civ. Code,  1559); the complaint sounded exclusively in negligence. Therefore, in moving for summary judgment, defendants were not required to negate this theory.