Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VC042899, Raul A. Sahagun, Judge.
Law Offices of Barry S. Zelner, Barry S. Zelner, and Charles L. Fonarow for Plaintiff and Appellant.
Bononi Law Group, Michael J. Bononi, and Nicole K. Brooks for Defendant and Respondent.
SUZUKAWA, J.
Orlando Sylve (appellant) sued Vons Companies, Inc. (Vons), Special Response Corporation (SRC), and Armando Acosta for damages for injuries sustained when he attempted to deliver bananas to a Vons grocery distribution center in Santa Fe Springs during a grocery workers’ strike. Vons filed a motion for summary judgment, which the trial court granted. Appellant appeals from the judgment entered in favor of Vons. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The initial complaint was filed in August 2004 and named only Vons and Acosta, one of the individuals who allegedly attacked appellant, as defendants, with causes of action for assault and battery, negligent employment, intentional infliction of emotional distress, and negligent infliction of emotional distress. A third amended complaint, filed in July 2005, added defendants Pedus Services (Pedus) and SRC, who had been hired by Vons to provide security and patrol services, and causes of action for negligence and breach of third party beneficiary contract. Vons was named as a defendant in all six causes of action.
SRC filed its motion for summary judgment on December 27, 2005, arguing that appellant could not establish either a duty by SRC to prevent unforeseeable criminal acts or a special relationship necessary to impose a duty of care.
SRC’s summary judgment motion was denied by a different bench officer on April 13, 2006. The court found there was a triable issue as to whether SRC’s response to the attack was reasonable.
On February 22, 2006, Vons filed its summary judgment motion. It argued that it had no duty to prevent the attack on appellant, claiming that there had been no prior acts of assault on any of the drivers at the distribution center. Vons acknowledged that, once it became aware of the attack on appellant, it had a duty to protect appellant from ongoing criminal conduct, and argued that the security guards it hired had responded reasonably to the strikers’ attack. Vons urged further that even if it had breached its duty of care to appellant, he could not show that the breach was the legal cause of his injuries. Alternatively, Vons claimed that it was not liable for the unforeseeable negligent acts of its independent contractors (the security companies).
Vons also urged it was entitled to summary judgment on appellant’s other causes of action, however, as appellant has chosen to present argument relating only to his negligence claims and the issue of duty, we do not address the other causes of action.
In support of its motion for summary judgment, Vons submitted the deposition testimony of appellant and Baudello Areano and Saul Ramirez, two Pedus guards, as well as a declaration from Ken Trimble, Vons’s loss prevention manager. In addition, it submitted appellant’s responses to Vons’s special interrogatories and SRC’s requests for admissions.
Appellant testified that he had been making deliveries to the Vons distribution center five days a week for a year without incident. He was never given any special instructions on how to deal with the strikers, who were usually congregated on the driveway by the gates to the center. He was never told to keep his windows up or to remain in the truck. On the day he was injured, December 3, 2003, prior to the attack, nothing unusual had happened at the distribution center. After he had unloaded his truck, he stopped at the exit gate, where the SRC guard inspected the vehicle. A second SRC guard on the driveway asked him to roll down his window and told him he could not make a right turn. He did not tell appellant to roll the window up. The guard then turned around and walked back to the guard shack. Appellant was about 10 to 15 feet away from the guard shack and could see the strikers on the left side of his truck. He did not tell the guard about the strikers because he “didn’t think they was gonna do nothing.” A striker spit on him, and several jumped on his truck. Someone opened his door and he was pulled to the ground and beaten. He did not know how many people attacked him and could not provide any estimate of the length of the attack. He could only say that it “happened very quickly.”
Areano testified that there were seven SRC guards in the area at the time of the incident, including two guards at each gate, and that he gave appellant specific instructions on the day of the incident to roll up his truck window. As appellant’s truck began to exit the gate, Areano saw the two SRC guards who were assigned to the gate “going towards the crowd.” Ten to fifteen seconds later, Areano heard the two SRC guards yelling. Areano looked and saw that appellant was on the ground for a couple of seconds before the two SRC guards pulled him up and escorted him through the crowd of dispersing picketers. Areano called the police.
Ramirez testified that prior to the strike, there were three Pedus guards at the distribution center, but 10 to 15 others were added during the strike. The strikers made verbal threats to security officers and impeded traffic. On one occasion, a striker threw a rock at a Pedus vehicle.
Ken Trimble’s declaration stated that all vendors were required to check in and were given instructions on how to safely enter and exit the facility. There were nine Pedus guards strategically posted around the distribution center. There were also 14 SRC guards in the area, two of whom were assigned to each gate and told to assist vehicles to safely cross picket lines and advise exiting trucks to keep their windows up. Attached to Trimble’s declaration was the contract between SRC and Vons, which stated that the services provided are supposed to conform to “accepted trade practices and standards.”
In opposition, appellant incorporated the evidence he had submitted in opposition to SRC’s summary judgment motion, which included the deposition testimony of Areano, Ramirez, and Steven Bailey and Sergio Lopez, two Whittier police officers.
Officer Bailey testified that the police department had been called approximately two times to the distribution center regarding attacks by picketers. However, he could not recall if either call occurred prior to the December 3 attack on appellant. In one case, picketers attacked an individual who had gotten out of his vehicle to confront a union worker. The person attacked was not related to the strike, and the confrontation took place across the street from the distribution center. The second incident occurred when a trucker got out of his vehicle and was hit by a picketer wielding a picket sign. Police were called on almost a daily basis to deal with uncooperative picketers who would not allow trucks out of the driveway. Often the police would station themselves across the street from the distribution center to monitor the activities. Officer Lopez testified that the police were called out most of the time to address the blocking of the sidewalk and to keep the peace. They went out to the distribution center on a daily basis.
Areano testified that on the day the strike began, he was given instructions on how to escort the truck drivers in and out of the facility. He was to tell the truckers to keep their doors and windows closed. One of Vons’s employees, Fernando Lopez, instructed him to tell the drivers to keep their windows up because the strikers were “unruly.” These instructions were no different than those given during any other strikes. Areano personally observed strikers spitting on vehicles, using profanity, and hitting the vehicles with their picket signs. However, he thought it was safe for people coming in and out of the facility despite the picketers’ presence. On the day of the incident, he saw appellant’s truck stopped with its windows rolled up, and one of the SRC guards standing near the truck. He had been told by Lopez that the SRC guards were to escort the drivers out of the lot. It did not appear, however, that the SRC guard “was walking out with” appellant.
Vons’s motion was heard on May 8, 2006. The order granting the motion was filed on June 6, 2006, and stated, inter alia, “Here the only disputed fact is the length of time the attack lasted and whether there were prior similar incidents. Neither raise[s] a material issue. [¶] In anticipation of the strike, Vons implemented additional security at the distribution center. [Undisputed Material Fact ] #5. They hired three security companies and placed no less than nine security guards at or near the entrance of the main gate. Although plaintiff alleges that Vons breached its duty, he has not shown what more Vons could have done to perform its duty. The fact that triable issues may exist with respect to a security company’s employee’s negligence does not create a triable issue[] of material fact with this defendant. Vons is not liable for [the] acts of its independent contractor. [¶] While a landowner/possessor cannot delegate his duty to maintain its premises in a reasonably safe condition, there is no authority that holds that a landowner cannot delegate its duty to a security company to protect an invitee from third party criminal activity. In fact the cases that discuss the duty imply that such companies should be hired when the landowner has knowledge of criminal activity. While plaintiff disputes that Vons had no knowledge of prior incidents, this issue is immaterial because Vons hired the additional security in anticipation of the strike. Plaintiff has not shown that a reasonable defendant would have acted any differently had it actually known of prior criminal activity. [¶] . . . By its own terms the contract expressly eliminates third party beneficiaries. [Undisputed Material Fact] #38. [¶] There is no basis for the [intentional infliction of emotional distress] cause of action and [negligent infliction of emotional distress] is subsumed into the negligence cause of action which, as discussed above, is without merit as a matter of law. [¶] . . . Given the precautions that Vons took, the court finds that reasonable minds could not differ in . . . determining that Vons performed its legal duty to plaintiff.”
Appellant filed a motion for reconsideration on May 18, 2006, on the grounds that the court “made a grievous error of law in granting the motion and that new facts establish that the motion should not have been granted.” Appellant submitted the deposition testimony of Jorge Acosta, the alleged attacker. Appellant claimed that he had not received the transcript of Acosta’s deposition until after the hearing on the summary judgment motion because Acosta had refused to have his deposition taken until two weeks before the hearing. Appellant had attempted to introduce Acosta’s testimony at the earlier hearing by way of counsel’s declaration, however, Vons’s objection was sustained. Appellant also contended that he had attempted to take the deposition of Vons’s most knowledgeable person regarding the duties of the security officers, but that he had failed to appear.
Acosta testified that he was given instructions on how to picket and was told how long the picketers should stand in front of the trucks. He saw four security guards in front of the distribution center on the date of the incident, and there were about 45 people picketing. Prior to the day of the incident, he had seen a trucker run over the foot of a picketer, a trucker throw a cigar out the window at a picketer, and a trucker pull a knife on one of the picketers. He had seen trucks trying to run picketers over. Police came to the site on a daily basis. Acosta had previously seen guards escort trucks through the gate, but appellant’s truck was not escorted on the day of the attack.
In a further effort to demonstrate acts of prior violence, appellant referred to Areano’s deposition testimony that there were 10 to 30 prior incidents where picketers either spit at the passing trucks or struck the vehicles with their signs.
Vons responded that appellant had never noticed Acosta’s deposition. Acosta gave his deposition at the behest of Vons. Moreover, appellant did not have the transcript of Acosta’s testimony because his counsel chose not to order it. Finally, appellant noticed the deposition of Vons’s most knowledgeable person on May 8, the same day as the hearing on the summary judgment motion.
The court denied the motion for reconsideration, stating, inter alia, “There are no ‘new or different facts’ which were not or could not be presented at the hearing. Even if the motion did contain ‘new facts’ there is no satisfactory explanation why these facts were not presented at the hearing. . . . The fact that the individually named defendant ‘saw’ fewer than the number of guards Vons claims were in the area is insufficient to raise a triable issue of material fact. The number claimed by Vons was supported by the evidence and undisputed by plaintiff at the time of the hearing.”
Appellant appeals, contending that: 1) Vons had a duty to take reasonable steps to prevent the attack; 2) Vons could not delegate that duty; 3) there are triable issues of fact as to whether Vons breached its duty; 4) the trial court should have granted his motion to continue the original hearing; and 5) the trial court should have granted his motion for reconsideration.
DISCUSSION
Summary judgment shall be granted in favor of a defendant if the defendant establishes that a complete defense exists to the causes of action alleged against it or that the plaintiff cannot establish one or more elements of the causes of action alleged. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
All further undesignated statutory references are to the Code of Civil Procedure.
On appeal from an order granting summary judgment in favor of a defendant, we examine the record de novo in order to determine whether triable issues of fact exist. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “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, supra, 25 Cal.4th at p. 850, fn. omitted.) We view the evidence in the light most favorable to the losing party, liberally construing its evidentiary submissions and strictly scrutinizing those of the moving party. (Ibid.)
I. Vons’s Duty to Appellant
Appellant argues that Vons had a duty to protect its invitees. He cites case law for the proposition that a possessor of land owes a duty to others to maintain the property in reasonably safe condition. He asserts Vons had a duty to prevent the attack perpetrated on him, and claims the duty could not be delegated to the security companies Vons hired.
A business has a duty to protect its invitees from injury caused by foreseeable third party criminal acts “‘that are likely to occur in the absence of such precautionary measures.’ [Citations.]” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).) “[T]he scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.]” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678.) A high degree of foreseeability is required in order to find that a business owner’s duty of care includes the hiring of security personnel. (Id. at p. 679.) “[T]he 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.” (Ibid., fn. omitted.)
In his opening brief, appellant does not discuss the applicability of the relevant case law to Vons’s duty to prevent the type of attack involved here, choosing instead to respond to the arguments Vons presented below. He argues in his reply brief that Acosta’s testimony, in conjunction with the testimony of the two officers, Bailey and Lopez, “clearly establishes that Vons could and should have foreseen potential danger of an attack upon its truckers delivering items to the premises.”
We examine the testimony of Officers Bailey and Lopez. Both testified that the police were called on a daily basis, mostly for the purpose of preventing the strikers from blocking the sidewalk. Officer Bailey remembered two incidents where he was asked to respond to the distribution center because of attacks by picketers. However, he could not recall if the incidents took place prior to the December 3 attack on appellant. One of the fights did not involve a trucker, and took place across the street from Vons’s premises. On that occasion, a man was getting into a car when a union member uttered a racial slur to him. When the man confronted the union member, he was attacked by some of the picketers who ran across the street to join the fray. In the other instance, a trucker got out of his vehicle and one of the strikers hit him with a picket sign. In both cases, the person who was attacked confronted his attacker. In neither case did the strikers come onto Vons property, pull a trucker from the cab of his vehicle, and attack said driver.
Although not raised by either party, appellant admitted in his verified response to SRC’s request for admissions that he got out of his truck after he believed he had been spat upon. (See § 2033.410, subd. (a) [“Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300”].) Acosta testified that appellant got out of his truck prior to the attack.
Although we recognize that heightened foreseeability “does not require a showing of prior nearly identical criminal incidents” (Delgado, supra, 36 Cal.4th at p. 245), the testimony of the two officers does not provide examples of prior similar incidents. Initially, we note that there is no evidence that there were any prior incidents of similar violence against a truck driver. Appellant admitted in his verified response to SRC’s request for admissions that, for the three years preceding the incident that gave rise to this lawsuit, he has no evidence of similar violent acts. As we have discussed, Officer Bailey could not say whether the incidents that he recalled were before or after the attack on appellant. In any event, neither incident involved an unprovoked attack on a truck driver. In short, neither incident put Vons on notice that the strikers would assault an unsuspecting, nonconfrontational victim.
Appellant argues that Vons suspected there would be violence between the drivers and the strikers when it hired additional security. He asserts “[t]his very conduct of Vons establishes that there was a duty to protect the invitees because Vons anticipated trouble.” While Vons may have had reason to expect unrest due to the strike, that fact sheds no light on the issue of Vons’s duty. First, by voluntarily providing security at the distribution center, Vons did not assume a general duty to protect its invitees. (Delgado, supra, 36 Cal.4th at pp. 249-250; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1017-1018.) Although one who voluntarily undertakes the task of providing protection may have a duty to exercise due care in its performance of that task, this is so “if one of two conditions is met: either (a) the volunteer’s failure to exercise such care increases the risk of harm to the other person, or (b) the other person reasonably relies upon the volunteer’s undertaking and suffers injury as a result.” (Delgado, supra, 36 Cal.4th at p. 249.) Appellant has provided no evidence or argument that either condition applies here. Second, although Vons was aware of the need to provide additional security, there is no evidence that it was aware or should have been aware of the need to protect against the specific danger to the drivers that arose here—an unprovoked mob attack.
The cases cited by appellant in support of his claim that Vons had a duty to prevent the attack are distinguishable. All involved the question whether the security company reasonably responded to either an ongoing attack or to specific information of an ongoing threat. (Trujillo v. G.A. Enterprises, Inc. (1995) 36 Cal.App.4th 1105 [security guard tried to protect a patron from attack]; Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193 [same]; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225 [security company had information that attacker had been on the premises without authorization on three separate occasions prior to the attack].) As we have made clear, as Vons had no such prior notice, it had no duty to prevent the attack.
Appellant contends that, contrary to the instructions given to SRC guards, appellant’s truck was not actually escorted through the gate by the two guards assigned to that task on the day of the incident. Although there is some evidence to support this position, it does not create a triable issue of material fact on the issue of breach of a duty of care because Vons had no legal duty to prevent the attack in question.
II. Vons’s Duty With Respect to Ongoing Criminal Conduct
Once Vons became aware of the attack on appellant, it had a duty to “take such appropriate action as is reasonable under the circumstances to protect patrons” and invitees. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 823.) We conclude the evidence clearly establishes that Vons performed its duty.
The evidence is undisputed that as the attack unfolded, security guards rushed to appellant’s aid. The guards dispersed the crowd, helped appellant to the guard shack, and summoned the police. The dispute lies in the amount of time it took for the guards to respond. In his deposition, appellant was asked if he had any estimate of how much time passed from the moment he was pulled from the truck to the time the attack ended. He answered no. In contrast, Areano testified that appellant was on the ground for a couple of seconds. In his opposition to the motion, appellant suddenly recalled how long the attack had lasted. He filed a declaration stating, “[w]hile the foregoing activities happened quickly, it certainly covered a substantial period of time, many seconds, from the time the guard turned to walk away until the attack upon me was stopped.” (Italics added.) While the trial court could have disregarded appellant’s declaration, which conflicted with his deposition testimony (Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270), his belated evidence nonetheless failed to raise a triable issue on the question of the reasonableness of the security guards’ response. Although such issues are generally left to a trier of fact, we conclude no rational arbiter of the facts could find the guards’ response unreasonable under the circumstances. The attack was sudden and unexpected. Appellant concedes the guards assisted him within seconds, not minutes, of the attack. Given our facts, a response time measured in seconds is virtually all that is humanly possible.
Appellant points to the trial court’s denial of SRC’s summary judgment motion and argues its finding is “akin to the ‘law of the case.’” Even assuming the two courts evaluated the identical evidence, the doctrine applies only to decisions of appellate courts. (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 99.)
Given our decision on the issue of duty, we need not address whether Vons’s duty was delegable.
III. Appellant’s Motion to Continue
In his opposition, appellant asserted that the motion could not be granted because he was entitled to a continuance pursuant to section 437c, subdivision (h). He claimed this was so “because plaintiff has been prevented to this time from taking the depositions of two key witnesses . . . .” The motion referred to a declaration filed in opposition to SRC’s summary judgment motion, which stated that appellant “has been unable as yet to take the deposition of SRC employee Carlos Sanchez or the [person most knowledgeable] for Special Response, both of whom have testimony [relevant] to the facts in this case.” He alleged that SRC’s counsel had reneged on his promise to produce the witnesses. Appellant also informed the court that he had noticed the deposition of Vons’s designated representative and Jim Norton, a Vons employee, for May 8, 2006. Vons opposed a continuance, arguing that appellant had failed to explain why he needed additional time. Vons accused appellant of abdicating his responsibility to diligently prosecute the case, noting that the depositions of its employees were noticed for the same date as the hearing on the summary judgment motion.
Under section 437c, subdivision (h), “[t]he nonmoving party seeking a continuance ‘must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.)” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) The decision whether to grant a continuance is within the discretion of the trial court. (Ibid.)
Appellant failed to meet any of these requirements. He merely stated that certain witnesses have testimony to offer, and made no effort to set forth what facts would be obtained, let alone what essential facts. Appellant gave no justification for failing to notice the depositions of Vons’s employees until April 2006, when he had filed the complaint in August 2004. The trial court acted well within its discretion by denying appellant’s motion to continue and granting the motion.
IV. The Motion for Reconsideration
Appellant contends the trial court should have granted his motion for reconsideration. A motion for reconsideration must be based on new or different facts, circumstances, or law. (§ 1008, subd. (a).) “To merit reconsideration, a party must give a satisfactory reason why it was unable to present its ‘new’ evidence at the original hearing.” (Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 693, fn. 6.)
Appellant presented as new evidence the deposition testimony of Jorge Acosta. Vons argued that appellant could have presented the evidence at the original hearing. It pointed out that Acosta’s deposition had been taken on April 24, 2006. The deposition was taken pursuant to Vons’s notice, not appellant’s. Even though appellant’s opposition to the motion for summary judgment was due on April 19, his counsel did not request a copy of Acosta’s testimony at the conclusion of the deposition. Vons claimed that appellant’s failure to act diligently barred his motion for reconsideration.
The trial court concluded that there were no new or different facts which appellant could not have presented at the original hearing. We agree. Appellant does not attempt to explain why he failed to request an expedited transcript of Acosta’s testimony. At the very least, appellant should have sought a continuance by specifically setting forth the essential facts Acosta would provide. He failed to do so.
Even if we consider Acosta’s testimony, it fails to raise a triable issue of fact on the issue of duty. Acosta testified to three incidents where truckers had acted aggressively toward strikers who were blocking the driveway. He did not testify to a single incident similar to the instant case—an unprovoked attack on a trucker by a group of strikers. Acosta’s testimony was merely cumulative to that given by Officer Bailey. The motion for reconsideration was properly denied.
DISPOSITION
The judgment is affirmed. Vons is to recover its costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.