Opinion
A131228
11-14-2011
MICHAEL E. ARNOLD, Plaintiff and Appellant, v. CLAYTON VALLEY BOWL, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. C08-02718)
Plaintiff Michael E. Arnold worked as a security guard patrolling a shopping center which included defendant Clayton Valley Bowl, Inc. Two drunken patrons of the bowling alley, ejected by fellow patrons, drove off in a truck that struck plaintiff in the parking lot injuring him. In this personal injury action against defendant, plaintiff repeatedly failed to state a cause of action for negligence because he cannot show a special relationship between himself and defendant. He appeals from an order dismissing his complaint after the trial court sustained a demurrer to his third amended complaint without leave to amend. We affirm for the reasons set forth below, including failure to establish a duty on the part of defendant to take action to prevent what happened.
I. FACTS
In reviewing the sufficiency of a complaint, we must provisionally accept as true all properly pleaded material facts alleged in the complaint. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1125; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]" (Blank, supra, at p. 318.) The burden of showing a reasonable possibility of curing the defect "is squarely on the plaintiff. [Citation.]" (Ibid.)
Plaintiff's third amended complaint alleges the following material facts.
On November 29, 2006, plaintiff was working as a security guard for Securitas Security Services USA, Inc. (Securitas). He patrolled the Clayton Fair shopping center in Concord, California, which was managed by Clayton Fair Properties. The shopping center included the tenant Clayton Valley Bowl, owned and operated by defendant. Clayton Fair Properties hired Securitas to patrol the shopping center's parking lot. Plaintiff's duties primarily consisted of patrolling the lot to discourage thefts, vandalism and other damage to shopping center businesses; to look for suspicious activity in the parking lot; and to request loiterers, such as groups of teenagers, to move along. These duties were intended to benefit the shopping center's businesses by protecting their patrons as they entered and exited the businesses, by protecting the property of the businesses, and by keeping the parking lot safe. Occasionally, plaintiff would enter the bowling alley to deal with disturbances.
On November 29, 2006, Roger D. Parkison and Christopher M. Fraulino went to the Clayton Valley Bowl to drink alcohol and play pool. They were served alcohol by bowling alley employees, became "extremely intoxicated," began acting "rowdy," and started a fight with other bowling alley patrons. Plaintiff alleged on information and belief that bowling alley employees made no effort to protect patrons from Parkison's and Fraulino's "harassment and assaults," did not try to calm the two men down, and did not promptly summon police. Bowling alley patrons fought back against the two men and ejected them.
"Emboldened by the lack of any security or response by bowling alley personnel," the two men began damaging vehicles in the shopping center parking lot. Plaintiff heard the commotion and responded. Parkison and Fraulino drove off in a pickup truck that struck plaintiff, injuring him.
Defendant demurred to the third amended complaint on three grounds, only one of which we need to discuss in this opinion: that plaintiff had no special relationship with defendant and therefore the latter owed him no duty of care to protect him from third-party criminal assault. The trial court agreed: "Despite an opportunity to amend, plaintiff has still failed to allege facts showing a 'special relationship' between plaintiff and defendant giving rise to a duty to prevent third-party conduct . . . ." The court contrasted the present case with two California Supreme Court decisions which found a special relationship, and therefore a duty, between a business and a patron (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 (Delgado)) and between a business and an invitee (Morris v. De La Torre (2005) 36 Cal.4th 260 (Morris)).
The trial court dismissed the third amended complaint. Plaintiff appeals.
Plaintiff also sued Parkison and Fraulino, who are not parties to this appeal. Apparently, Parkison was convicted of several offenses as a result of the incident and was sentenced to prison.
II. DISCUSSION
Generally, there is no duty to act to protect others from third-party conduct. (Delgado, supra, 36 Cal.4th at p. 235; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435; Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 911.) But one of the exceptions to this rule is the "special relationship" doctrine. (Delgado, supra, at p. 235.) If a defendant has a special relationship with another, he may owe that person a duty to protect him from third-party conduct. Such a special relationship is often found between business proprietors—such as bars, restaurants, or shopping centers—and their tenants, patrons, or invitees. (Ibid.) Under such a special relationship, the proprietor would have a duty to take reasonable steps to secure common areas against reasonably foreseeable third-party criminal acts which would likely occur in the absence of those reasonable precautionary steps. (Ibid.; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, overruled on unrelated ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.)
In Delgado, the Supreme Court found a special relationship existed between a bar and a patron when a security guard was on notice that a fight was about to break out between the patron and other customers. Thus, the bar had a duty to take reasonable steps to protect the patron from third-party assault. (Delgado, supra, 36 Cal.4th at pp. 229-231, 244-247, 250.) In Morris, the Supreme Court found a special relationship existed between a restaurant located in a shopping center and an invitee who came to the center with others, but stayed in the parking lot because he did not want to eat. A fight broke out between the invitee and gang members. One of the gang members entered the restaurant, obtained a knife, and went back outside and stabbed the invitee. The court found the restaurant staff at least had a duty to call 911. (Morris, supra, 36 Cal.4th at pp. 265-267, 271-278.)
Plaintiff claims he was an invitee of defendant and that status gives rise to a special relationship. An invitee, or a "business visitor" in more modern usage, does not have to be a patron, but is simply invited onto the premises to visit without buying anything, or perhaps in connection with a future visit to shop at the premises. (Morris, supra, 36 Cal.4th at pp. 271-273; see 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts § 1113, pp. 444-445.) Courts have generally applied the invitee status to store customers, hotel guests, deliverymen, repairmen, building inspectors, window washers, and the like. (6 Witkin, supra, §§ 1116, 1117, pp. 446-448.) But there is no similar relationship here between plaintiff and the tenant Clayton Valley Bowl. The plaintiffs in Delgado and Morris were by definition invitees in view of their relationship with the business and their purpose in being there. Here, plaintiff did not occupy a similar status.
Plaintiff has presented no authority that an on-duty security guard, hired to patrol the parking lot ancillary to a business for the protection of the business and its property and the parked cars of patrons, is an invitee of the business. We know of none. To hold plaintiff is an invitee would lead to the incongruous result of defendant having a duty to protect a security guard hired to safeguard a shopping center, including tenants, from a drunken assault by troublemakers away from the tenant's premises, a type of harm a security guard would expect to encounter in the ordinary course of his duties. Nor are there any compelling public policy reasons to find a special relationship under the facts of this case.
Plaintiff cited Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 and Marquez v. Mainframe (1996) 42 Cal.App.4th 881 discussing application of the firefighter's rule to persons injured while on the premises where they were hired to provide safety. The courts found the firefighter's rule did not apply and, using traditional premise liability law, concluded defendants owed a duty to plaintiffs for injuries caused by their negligence. Factually the cases are dissimilar from plaintiff's relationship to defendant here.
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Because there is no reasonable possibility that the defect in plaintiff's complaint can be cured by amendment, the trial court properly sustained defendant's demurrer without leave to amend.
III. DISPOSITION
The judgment of dismissal is affirmed.
Marchiano, P.J. We concur: Margulies, J. Dondero, J.