Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC348956, John Shepard Wiley, Jr., Judge. Affirmed.
Law Offices of Calvin J. Park & Associates and Calvin J. Park for Plaintiffs and Appellants.
Law Office of Priscilla Slocum, Priscilla Slocum; Early, Maslach & Van Dueck and James Randall for Defendant and Respondent.
KRIEGLER, J.
Plaintiffs and appellants My Pyo Lee and Jung Wha Lee filed an action against defendant and respondent Hamp, LLC, and defendants Kia Tran, Hoan Tran, Ky Quoc Nguyen, and Do Soo Suh, alleging wrongful death, premises liability, and general negligence. The Lees’ action was based upon the tragic murder of their son, Chung Ho Lee, at a shopping center owned by Hamp. The Lees’ theory of liability was that Hamp was negligent in its failure to provide a security guard at the shopping center when their son was killed. The trial court granted summary judgment in favor of Hamp on the Lees’ first amended complaint. We affirm.
The individual defendants are not parties to this appeal.
The First Amended Complaint
The Lees alleged they are the surviving heirs of their son, Chung Ho Lee. Defendants Kia Tran, Hoan Tran, and Ky Quoc Nguyen were convicted of the murder of Chung Ho Lee. Hamp owned the premises at 2717 West Olympic Boulevard in Los Angeles where Chung Ho Lee was killed by the Trans and Nguyen. According to the allegations of both the premises liability and general negligence causes of action, Hamp failed to: maintain the premises in a safe condition; provide adequate security, knowing the shopping center was likely to attract gangs and gang-related activities; warn the decedent of the dangers presented by the lack of security; and exercise due care with respect to the allegations of the first amended complaint.
The Motion for Summary Judgment
Hamp moved for summary judgment on the basis that a landowner cannot be liable for criminal acts of a third party in the absence of similar prior acts that would have caused the landowner to anticipate the crime. As a second ground, Hamp argued the Lees could not establish causation between the lack of security and their son’s murder.
In its separate statement of undisputed facts, Hamp established that Chung Ho Lee was employed as a janitor at Smile Music Studio, a tenant in unit 106 in the building owned by Hamp. Smile Music is managed by defendant Suh. There were no prior similar acts on the premises during the time of Hamp’s ownership. The attack occurred at 1:59 a.m., outside of the normal business hours of the premises.
Chung Ho Lee was outside with defendant Suh, when a group of customers of Smile Music left and entered a vehicle. The vehicle stopped and one of its occupants vandalized a car in the parking lot. Chung Ho Lee confronted the vandals and was killed by a single stab wound.
Sandy Kim, the property manager for Hamp, filed a declaration stating she is responsible for the shopping center, which has been owned by Hamp since the early 1990’s. Smile Music is a tenant at the premises. Kim is unaware of any violent crimes occurring on the premises before Chung Ho Lee’s murder in 2005. As property manager, she is responsible for claims against the premises. She has not received any claims based on violent crimes on the premises prior to Chung Ho Lee’s murder. On the day of the murder, Hamp employed a security guard on the premises from noon until 10:00 p.m., the normal business hours of the premises.
The Lees’ Opposition to the Motion for Summary Judgment
The Lees filed an opposition on February 14, 2007. The opposition was not in proper form and did not comply with the rules of court. At a hearing on March 15, 2007, the trial court indicated it was prepared to grant summary judgment, both on the merits and on the basis of the procedural shortcomings of the response. Due to the tragic nature of the underlying facts, and out of a concern that a trial should not be denied if triable issues of fact existed, the Lees were permitted to file a new opposition.
In their amended opposition, the Lees argued that Kim’s declaration was untrustworthy and should be rejected under Code of Civil Procedure section 437c, subdivision (j), because it was inconsistent with her deposition testimony. The Lees’ contended that in her deposition testimony, Kim admitted the hours of operation of the premises were fictional and she never let any tenant know of those hours, nor did she make any attempt to enforce such hours.
In addition, the Lees argued the crime was foreseeable and whether adequate security measures would have prevented the murder is a question of fact. There were an excessive amount of calls for police assistance to the premises as reflected in dispatch reports from the Los Angeles Police Department.
In their separate statement of genuine issues, the Lees asserted that two tenants in the shopping center required special permits, which put Hamp on notice of the dangerous condition. A security guard could have stopped the vandalism of the car. A report documenting 128 patrol calls for services to the premises established the dangerous conditions at the location. The time of the attack was not outside of normal business hours, as Kim did not enforce the hours and tenants could operate 24 hours a day.
The trial court ruled the log of police calls inadmissible under Alvarez v. Jacmar Pacific Plaza Corp. (2002) 100 Cal.App.4th 1190, 1203-1207, which held that police dispatch logs were inadmissible hearsay.
Discussion
Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“An action in negligence 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. [Citations.]” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.)) “The existence of a duty is a question of law for the court. [Citations.]” (Id. at p. 674.) Accordingly, we determine the existence and scope of the duty owed by Hamp under the de novo standard of review.
The Decision in Ann M.
The leading case on premises liability based upon a failure to supply security is Ann M. The plaintiff in Ann M. was raped while working at a photo processing service located in a secluded area of a 25-tenant shopping center. Although the shopping center retained the exclusive right to control the common areas, the lease did not impose an obligation to police either the common areas or those areas under the exclusive control and management of the tenants, and no security guards were employed. There was evidence of violent crimes in the area of the shopping center, including bank robberies, purse snatchings, and a man pulling down women’s pants, but there was no evidence that the shopping center had knowledge of these alleged criminal acts. (Ann M., supra, 6 Cal.4th at pp. 670-672.)
After the rape, Ann M. filed a civil complaint alleging negligence in failing to provide adequate security to protect her from an unreasonable risk of harm. The Ann M. court held that the shopping center was not negligent in failing to provide security patrols in the common areas and therefore did not reach the additional issue of whether the failure to provide security guards was a proximate cause of Ann M.’s injuries. (Ann M., supra, 6 Cal.4th at p. 674.)
California law requires landowners to maintain land in their possession and control in a reasonably safe condition, including 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.” (Ann M., supra, 6 Cal.4th at p. 674.) The issue in Ann M., as framed by our Supreme Court, was whether the shopping center “had reasonable cause to anticipate that criminal conduct such as rape would occur in the shopping center premises unless it provided security patrols in the common areas. For, as frequently recognized, a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. [Citations.]” (Id. at p. 676.)
“While there may be circumstances where the hiring of security guards will be required to satisfy a landowner’s duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’ The monetary costs of security guards is not insignificant. Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined. ‘No one really knows why people commit crime, hence no one really knows what is “adequate” deterrence in any given situation.’ (7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905.) Finally, the social costs of imposing a duty on landowners to hire private police forces are also not insignificant. (See Nola M [v. University of Southern California (1993)] 16 Cal.App.4th [421,] 437-438.) For these reasons, we conclude that a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. We further conclude that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well-established policy in this state. (See Riley v. Marcus (1981) 125 Cal.App.3d 103, 109; 7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal.App.3d at p. 905.)” (Ann M., supra, 6 Cal 4th at p. 679, fn. omitted.)
Turning to the facts, the Ann M. court concluded “that violent criminal assaults were not sufficiently foreseeable to impose a duty upon [the shopping center] to provide security guards in the common areas. [Citation.]” (Ann M., supra, 6 Cal.4th at p. 679.) The shopping center “did not have notice of prior similar incidents occurring on the premises” and although Ann M. alleged that previous assaults and robberies had occurred in the shopping center, “she offers no evidence that [the shopping center] had notice of these incidents.” (Ibid.) The shopping center presented uncontroverted evidence that it had implemented a practice of recording incidents of violent crime, but its records contained no such entries prior to the attack on Ann M. Finally, the remaining evidence presented by Ann M. was insufficient to establish the high degree of foreseeability necessary to impose a duty to provide security guards in the common areas. Neither the evidence regarding the presence of transients nor the evidence of the statistical crime rate of the surrounding area is of a type sufficient to satisfy this burden. (Id. at p. 680.)
The unfavorable outcome of the Lees’ litigation is compelled by the analysis and holding in Ann M., which demonstrates that the trial court properly granted summary judgment. Nothing in the Lees’ opposition to the motion for summary judgment established the high degree of foreseeability necessary to require Hamp to employ around the clock security guards at the shopping center. The Lee’s evidence of a number of patrol calls to the location was properly excluded as inadmissible hearsay (see fn. 2, supra), but even if we were to consider the logs, they simply do not establish any prior instances of the type of violent assault suffered by Chung Ho Lee. Significant incidents of violent crime would have been reported to Kim, but she had no record of any such reports during the lengthy time Hamp owned the center. The fact that two businesses required special permits in order to operate, without more, does not establish that a violent attack was foreseeable. Whether the murder took place during business hours or outside of regular business hours is of no significance, because the Lees presented no evidence of prior similar acts occurring at the shopping center at any hour of the day which would have rendered Chung Ho Lee’s murder foreseeable.
Our conclusion is consistent with other pertinent authorities. (See Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1222-1223 [no duty to hire security guards at a trailer park where gang members resided]; Sharon P. v. Arman, LTD. (1999) 21 Cal.4th 1181, 1191-1192, disapproved on other grounds in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854, fn. 19 [violent attack in a subterranean garage was not foreseeable in the absence of prior similar incidents; landlord had no duty to hire security guards]; Rhinehart ex rel. Combs v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 434-435 [club had no duty to prevent rocks from being thrown onto a playground in the absence of evidence of prior similar incidents]; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1272-1273 [roller rink was not negligent in failing to hire security guards; a drive-by shooting is an unforeseeable act].)
Because summary judgment was properly granted on the basis that Hamp did not have a duty to hire security guards, we need not address Hamp’s contention that summary judgment was also properly granted because the Lees cannot establish causation. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772.)
DISPOSITION
The judgment is affirmed. Costs are awarded to Hamp on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.