Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS023088
SIMONS, J.
On October 26, 2002, 13-year-old appellant was sexually assaulted while visiting Six Flags Marine World, a family amusement park in Vallejo, California. By and through her guardian ad litem, appellant brought suit against Park Management Corporation, doing business as Six Flags Marine World and Six Flags Theme Parks, Inc. (hereafter Marine World or respondents), and Hunter’s Point Boys and Girls Club for damages arising from this assault. The trial court granted a motion for summary judgment brought by respondents, concluding that appellant had failed to prove that (1) a lack of security caused her injuries; and (2) a janitor employed by Marine World knew or had reason to know a crime was occurring, such that a duty to help avert the danger arose. Appellant challenges this ruling; we affirm.
Three causes of action were alleged as to Hunter’s Point Boys and Girls Club, but this defendant was not a party to the summary judgment motion at issue, and it is not a party to this appeal.
Background
Marine World hosted a Halloween event called Fright Fest each weekend in October 2002, including the date appellant visited the amusement park. Fright Fest includes haunted houses, costumed characters, and new shows in addition to Marine World’s regular rides and attractions, and the events tend to attract an increased number of teenagers to the park and more visitors during the evening.
Appellant and her friend arrived at Marine World between 1:00 p.m. and 2:00 p.m., and participated in various attractions. Around 7:00 p.m., appellant went to use the restroom while her friend remained in line for a go-cart ride. As appellant neared the entrance to the women’s restroom, several males grabbed her by her arms and legs and pulled her into a men’s restroom. The males carried appellant into the handicapped stall of the restroom and appellant was both anally and vaginally penetrated against her will by at least three of the males. At different points during the assault, appellant was lying either face up or face down on the restroom floor. Appellant recalled that a group of males was surrounding her and holding her down, and there were other patrons in the men’s restroom throughout the incident, but nobody assisted her. After the third sexual assault, the males left appellant in the stall and walked away. Appellant pulled up her pants and left the restroom to look for her friend. On her way out of the restroom, she noticed a janitor standing next to the janitor’s closet. Appellant found her friend, told her she had been raped, and the girls reported the incident to Marine World. A Marine World employee contacted a police officer, and appellant walked with authorities back to the location of the incident. She was able to identify three suspects, and each was arrested.
Respondents note that independent witnesses indicated appellant voluntarily followed one of the males into the restroom. The juvenile court in the delinquency proceeding found reasonable doubt as to whether consent was given during the events in question. For the purposes of the motion for summary judgment, respondents assumed appellant’s allegations were true, and we do as well.
On October 22, 2003, appellant filed a complaint for damages against respondents alleging numerous causes of action related to the sexual assault. A second amended complaint (the operative complaint) was filed on June 30, 2004. Specifically, appellant alleged seven causes of action as to Marine World: (1) negligent security, (2) negligent hiring, supervision, and training, (3) negligent supervision, (4) premises liability, (5) intentional misrepresentation, (6) negligent misrepresentation, and (7) negligent infliction of emotional distress. Appellant also requested punitive damages.
The Summary Judgment Motion
Respondents moved for summary judgment or, alternatively, summary adjudication of issues on the grounds that (1) appellant’s first, second, third, fourth, and seventh causes of action fail because respondents owed no legal duty to protect appellant against the criminal activity alleged, and there was no causal link between the alleged sexual assault and any act or omission by respondents; (2) appellant could not prove the essential elements for her fifth and sixth causes of action for negligent and intentional misrepresentation, and (3) plaintiff’s prayer for punitive damages must fail. Respondents included a statement of undisputed material facts in support of their motion for summary judgment, setting forth the incident as alleged by appellant in her deposition. Respondents also included the declaration of Dale Arnold, a director of operations for respondents, stating Marine World increased security for the Fright Fest events, and at the time of the alleged incident, 12 Marine World security officers, five Marine World loss prevention officers, and four Vallejo Police Department officers were patrolling the premises. The security and police officers were assigned to cover specific geographic areas inside the park, including the area where the subject restrooms were located.
The motion of respondents for summary judgment also contained eight exhibits: (1) a transcript of appellant’s deposition; (2) a set of special interrogatories propounded by respondents; (3) a demand for production of documents by respondents; (4) appellant’s answers to special interrogatories; (5) appellant’s response to demand for production of documents; (6) respondents’ request for admissions; (7) appellant’s response to request for admissions; and (8) a reporter’s transcript for the juvenile court proceedings of appellant’s three alleged attackers.
Appellant opposed the motion, arguing there was an “alarming history” of serious criminal assaults and sexual assaults at Marine World, and respondents owed a duty to appellant to take certain steps to protect against these types of foreseeable acts. Appellant also contended respondents owed a duty to appellant because Larry Moore, a janitor, observed the assault in progress. Appellant argued she was able to establish causation because it was more likely than not that reasonable restroom sweeps would have deterred the alleged assault, or that proper training of respondents’ employees, including janitors, would have interrupted the assault.
Appellant also responded to arguments regarding her claims for negligent and intentional misrepresentation. Summary judgment was granted as to these causes of action as well, but, on appeal, appellant does not challenge the trial court’s decision as to these two causes of action.
In support of her assertions that respondents owed her a duty and that she would be able to demonstrate causation, appellant relied heavily on a declaration from security expert Fred Del Marva. In his declaration, Del Marva discussed the foreseeability of the criminal activity in this case, based on the location of the assault and the reported history of criminal activity at Marine World. The trial court found that the evidence supported the requisite level of foreseeability in this case to establish a duty on the part of Marine World, and this ruling is not challenged on appeal. Next, Del Marva detailed the failures of respondents’ security system, including Arnold’s lack of knowledge regarding specific security details, including how patrol areas were implemented and whether restrooms were patrolled. Finally, Del Marva addressed causation stating that “but for [Marine World’s] negligent conduct and the ineffective level of security provided on that evening, [appellant] would not have suffered the sexual assault.” Del Marva opined that regular patrol of the area where the assault took place, more probably than not, would have deterred and prevented, or at least interrupted, the prolonged series of sexual assaults. Del Marva stated that had Marine World trained their employees regarding guest safety, the janitor would have said something to stop the assault or called security and some harm would have been prevented.
In opposing the motion, appellant also relied on and included portions of Moore’s deposition testimony, his testimony at the juvenile court proceedings, his declaration, and a police report containing Moore’s statements. In the police report dated October 26, 2002, the reporting officer wrote “Moore stated he did not know how he could help. He did not see anything.” When asked what he did see, Moore recalled seeing six to eight Black males run past him as he approached the restroom, and saw a group of young Black males in the rear of the restroom near the disabled stall, with some males looking over or under into the stall. He did not hear anything unusual. Moore stated he left the restroom and returned two or three minutes later, and, as he returned, the same group of males ran past him out of the restroom and a young Black female was also walking towards him. He stated everything looked fine and the woman did not appear to be crying or in distress.
During the juvenile court proceedings, Moore testified that when he first walked into the men’s restroom on the evening in question, he observed four legs in one stall. The restroom was crowded with approximately 30 people inside, and he could not clearly see the floor area surrounding the legs. He recalled one male standing on the commode in the next stall, looking over the wall of the stall. It was noisy, but he did not hear any yelling or screaming. He testified it was not unusual for the restrooms to be very busy, because the park was busy, and it was not unusual for a young male to be looking over or under into another stall because he has seen young males stand on the commode and throw paper at their friends. He testified, “It wasn’t really my fault what was going on. I was more interested in putting the key in the door and unlocking it and doing my job. [¶] After that, you know, I turned the other cheek, you know, and put the key into the door to get the stuff that I needed to clean the restroom up in there.” Moore proceeded with his tasks and retrieved what he needed to clean the restrooms. He later saw a woman exit the restroom, and he testified she had a little smile on her face as she passed by. The only unusual thing Moore witnessed was a woman walking out of the men’s restroom.
In 2004, Moore signed a declaration prepared by a private investigator hired by appellant’s counsel, stating, “I reported what appeared to be the rape of a young girl in the Men’s room at Marine World to a woman who worked there. . . . When this incident occurred, there was no security in sight. . . . I received no special training about what to do in an emergency.” In appellant’s opposition to summary judgment, she referred to this declaration only with regard to the statement about a lack of special emergency training.
In the included excerpts from his deposition, taken in February 2005, Moore stated he did not receive training in guest security. Regarding the incident in question, Moore recalled he had initially seen more than one set of legs in the men’s restroom, and later saw a woman coming out of the restroom. He reported the incident because he thought it was unusual, as he had never seen a woman coming out of the men’s restroom. He recalled when he walked into the restroom, it was noisy and “everybody [was] talking at the same time.” He acknowledged that his memory of the incident was probably better during his testimony in court in 2003.
In addition, in opposing summary judgment, appellant included a declaration of Lawrence Bragman (counsel for appellant) that summarized reports of prior assaults at Marine World, and included these reports as exhibits. Appellant included a portion of the testimony of Arthur Mattmiller, the operations manager for Marine World, given at the juvenile court proceedings. Mattmiller testified that Marine World employed 15 security officers for Fright Fest and received assistance from the Vallejo Police Department. The officers roved throughout the park, at the front gate, and in the parking lot. Officers have specific areas they are supposed to monitor, but no officer was assigned to watch a specific location such as the restroom in question. The park usually has two of its own security officers assigned in each area, and depending on how the police officers distributed themselves, there could have been two additional officers in the area as well. Mattmiller testified employees are told to report any suspicious activity, but there is no designated training program in this respect.
Appellant also included excerpts of Arnold’s deposition. At the time of his deposition, Arnold continued to serve as the director of operations for respondents, and was responsible for overseeing security services. Arnold stated that, at the time of the incident, a man named George Chapman was the security supervisor, and Arnold was his supervisor. Chapman was deceased at the time Arnold’s deposition was taken. Regarding security in the park, Arnold explained security officers were assigned areas to patrol, but he was not familiar with how such assignments were made. He did not know if security officers were given any specific instructions about patrolling the restroom areas. At the time of the incident there were a total of 12 security officers on duty. The park ordinarily employs eight security officers during other times of the year, but security was increased for Fright Fest due to increased attendance. Approximately 15 park services employees were on duty, but those employees were not given any special training in security services. They were, however, generally told to notify security if they observed anything out of the ordinary. Arnold was unaware of prior complaints lodged regarding Fright Fest activities, and he stated he did not review customer complaints nor did he review annual statistics on security incidents.
In reply to appellant’s opposition to the summary judgment motion, respondents submitted evidentiary objections to the declaration of Zina Britt, the declaration of Lawrence Bragman, each of the exhibits relating to prior incidents at Marine World, the incorporated declarations, the police report, and certain portions of the declaration of Fred Del Marva. It does not appear the trial court ruled on these objections.
The Summary Judgment Ruling
The trial court concluded summary adjudication of each cause of action was warranted and granted summary judgment in favor of respondents. The court found “sufficient foreseeability here, with evidence of prior physical assaults and a few sexual assaults on park property,” to create a duty. The court, however, found appellant unable to establish a causal link between respondents’ breach of duty and the assault. The court stated, “Courts have focused on the issue of causation, not duty, when a landowner has provided some security, to determine whether the additional security measures proposed by the plaintiff would have prevented the criminal activity. [¶] . . . [¶] Here, [appellant] presented insufficient evidence to show it was more likely than not that the assaults would have been prevented if additional security had been hired, or certain areas in which more of the prior criminal activity had taken place were focused on by the security patrols.”
Regarding appellant’s allegation that Moore failed to take appropriate action when he entered the restroom during the assault, the court found the evidence available to Moore at the time was insufficient as a matter of law to demonstrate that he knew or had reason to suspect a crime was occurring such that a report or intervention was necessary.
Appellant then filed a motion for reconsideration of the court’s order, based upon new facts and circumstances. Appellant submitted the deposition of Anthony Jefferson, taken after the hearing on the motion for summary judgment, and contended Jefferson’s testimony raised a triable issue of fact as to whether Moore had sufficient information to cause him to suspect that a crime was occurring. In his deposition, Jefferson stated he and the three suspects were part of a group from Hunter’s Point that visited Marine World on the date in question. He knew the three suspects and had seen them around the park that day with a girl. Jefferson later went to use the restroom and observed the girl enter the restroom with the suspects, wearing one of the suspect’s hat and coat, and she walked into the handicapped stall with one of them. From his perspective outside of the stall, Jefferson could see the girl’s feet and he saw her pants around her ankles. After several minutes, other young males began running into the restroom and two entered the handicapped stall. Jefferson recalled that a janitor walked in at one point, looking around to see what needed to be cleaned. Jefferson had previously heard moaning coming from inside the stall, but the moaning had stopped when the janitor entered. Multiple sets of legs were visible to Jefferson when the janitor entered the restroom. The janitor left, and returned a second time when everyone was running out “like a stampede.” As Jefferson ran out, he saw the janitor standing to the side by the restroom’s entrance. Throughout his time in the restroom, Jefferson never heard any kind of cry for help.
The trial court concluded appellant failed to demonstrate any triable issue of material fact that would support vacating or modifying its previous summary judgment order. Judgment was entered in favor of respondents in March 2006. This appeal followed.
Discussion
We review summary judgment rulings de novo to determine whether the moving party has met its burden of persuasion that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When the defendant is the moving party, the defendant must show either (1) that the plaintiff cannot establish one or more elements of a cause of action, or (2) that there is a complete defense. If that burden of production is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subds. (c) & (o)(2).) “All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. [Citation.]” (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)
I. Landowner Liability for Criminal Acts of a Third Party
“A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person. [Citations.] Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. . . . [W]e [have] recognized as ‘well established’ the proposition that a proprietor’s ‘general duty of maintenance, which is owed to tenants and patrons, . . . include[s] 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.’ [Citations.]” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235-236, italics omitted.) In a case where the “plaintiff, injured on [the defendant’s] premises by the criminal assault of unknown assailants, seeks to recover damages . . . on the theory that [the defendant] breached [its] duty of care . . ., the plaintiff must show that the defendant owed her a legal duty of care, the defendant breached that duty, and the breach was a proximate or legal cause of her injury. [Citations.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772, italics omitted.)
A. The Alleged Failure To Provide Adequate Security
“ ‘[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.’ ” (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 238, italics omitted.) Here, respondents provided security guards on the premises during the incident in question, but appellant claimed the security levels and methods of deployment were inadequate, and this failure allowed her assault to take place. The trial court found the requisite level of foreseeability to create a duty to provide security, due to the prior criminal assaults on Marine World’s premises, but the court concluded appellant was unable to prove causation. “When an injury occurs despite a defendant’s efforts to provide security or supervision, it is relatively easy to claim that, ipso facto, the security or supervision provided was ineffective. Without more, such claims fail. For analysis purposes, courts assume duty and breach and focus upon causation.” (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1370.) Similarly, for our analysis of this issue on appeal, we assume duty and breach, and look directly to the issue of causation.
In order “to demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor’ in bringing about the injury.” (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 774, citing Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 427.) “[T]he plaintiff must do more than simply criticize, through the speculative testimony of supposed security ‘experts,’ the extent and worth of the defendant’s security measures, and instead must show the injury was actually caused by the failure to provide greater measures.” (Saelzler, at p. 774, citing Nola M., at p. 435.) “ ‘A mere possibility of such causation is not enough; and when the matter remains one of 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.’ [Citation.]” (Saelzler, at pp. 775-776, italics omitted.)
In Saelzler, a plaintiff was injured on defendants’ premises, a 300-unit apartment complex, by the criminal assault of unknown assailants, and she sought to recover damages from the defendants on the theory that they breached their duty of care toward her. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 772.) Plaintiff’s security expert opined “ ‘that this attack, assault and battery, and attempted rape on the plaintiff would not have occurred had there been daytime security and a more concerted effort to keep the gates repaired and closed.’ ” (Id. at p. 771.) The trial court granted summary judgment for the defendants, but the Court of Appeal reversed. (Ibid.) The California Supreme Court focused solely on the issue of causation, and reversed the Court of Appeal with directions to affirm the award of summary judgment in favor of the defendants. (Id. at pp. 772, 781.) The Supreme Court explained that because the assailants were unidentified, the plaintiff could not demonstrate that their entry on the premises was unauthorized or that the failure to provide gate security or functioning locked gates was a substantial factor in causing her injuries. (Id. at p. 776.) The court also rejected the plaintiff’s claim that her injuries could have been avoided had the defendants hired roving security guards to patrol the entire premises during the day, because it was entirely speculative. (Id. at pp. 776-777.) The court stated, “Despite her expert’s speculation, [the] plaintiff cannot show that roving guards would have encountered her assailants or prevented the attack. As the dissenting Court of Appeal justice in this case observed, ‘A 300-unit, 28-building apartment complex contains many rooms, halls, entries, garages, and other spaces where a rape could take place despite extensive security patrols.’ ” (Id. at p. 777.) The Saelzler court cited with approval the cases of Nola M. v. University of Southern California, supra, 16 Cal.App.4th 421 and Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, both of which found a plaintiff could not prove a causal connection between a claim of inadequate security and injuries resulting from a third party attack. (Saelzler, at pp. 773-774.)
In Nola M., a woman was stabbed, beaten, and raped while walking on the campus of the university. (Nola M. v. University of Southern California, supra, 16 Cal.App.4th at p. 424.) She brought suit against the university, alleging that inadequate security, high foliage, and poor lighting in the area allowed her attack to take place. (Id. at p. 425.) The Court of Appeal held, as a matter of law, the university’s failure to deter the attack was not the cause of the plaintiff’s injuries, and remanded to the trial court with directions to enter judgment in favor of the university. (Id. at pp. 435, 439.)
Here, appellant asserts increased security in the area of her attack and regular restroom sweeps would have prevented her attack. She argues that because her attack went on “for many minutes,” reasonable patrols would have intervened. Appellant’s assertions, however, rely on her expert’s opinion, which is purely speculative. Appellant’s expert did not suggest any specific level of frequency for the restroom sweeps, or how many more security guards should have been allocated to the area in question; he simply asserted that reasonable sweeps or an increased security presence would have deterred, or encountered and interrupted the assault. Although this is, of course, possible, “ ‘a mere possibility of such causation is not enough.’ ” (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 775.) “[A]ssaults and other crimes can occur despite the maintenance of the highest level of security.” (Id. at p. 777.) Here, Marine World already had at least 12 security guards roving in the park, and yet the assault took place despite the presence of these guards, and the alleged presence of a park service employee and even other adult patrons. Following Saelzler, it is entirely speculative to say that additional guards would have deterred the attack or that roving guards engaging in a restroom sweep would have encountered the assault. (See Saelzler, at p. 777.)
Appellant also asserts proper training of Moore would have prevented or interrupted her attack. This argument relies on the premise that Moore knew a report-worthy incident was occurring, and that only his lack of training in guest safety prevented him from acting to interrupt the assault. We reject the premise in the next part of this opinion, and do not reach the question of causation in this regard.
Appellant relies on Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284 to argue we should reverse. In Mukthar, a convenience store cashier brought an action against a security service company for its alleged failure to prevent an attack he suffered from a store patron. The store had previously hired the security company to provide a security guard to be stationed at the entrance to the store. When on duty, the guard was armed, in uniform, and was equipped with a baton, handcuffs and tear gas. The security guard was not present when the incident occurred, and the security service company did not dispute that under its contract a guard should have been on duty at that time. During the incident in question, the cashier approached a patron at the front door to block her exit until she returned several items she had not purchased, and the patron hit the cashier in the eye. The Court of Appeal reversed the trial court’s grant of summary judgment in favor of the security company, and found it was a question of fact whether the cashier’s injuries were caused by the company’s negligence. (Id. at pp. 286-287.) Mukthar is inapposite, however. There, it was undisputed that the guard should have been standing at the front door, in the exact place where the cashier was struck. In his suit, the cashier was not suggesting that a roving guard possibly could have encountered the assailant at the moment of the attack, nor that an increased number of guards might have established a stronger security presence. Rather, the negligence complained of was the complete failure of the hired security guard to be in the precise location at which he was hired to stand. The court found it would be reasonable for a trier of fact to determine that the woman would not have struck the cashier had the armed guard fulfilled his duty of standing at the door. (Id. at p. 291.) We find such circumstances to be distinctly less speculative than the case at hand.
Even assuming duty and breach with regard to the level of security provided by respondents, we find appellant’s claim that such failure caused her attack is speculative, and she cannot prove causation as a matter of law.
B. The Duty to Prevent Ongoing or Imminent Criminal Activity
Appellant also contends Marine World breached a duty to protect her from ongoing or imminent danger when Moore allegedly observed the incident but failed to take appropriate action to help appellant or summon security. For this claim, we begin by analyzing the factual predicate to a duty to act.
Where a business proprietor has actual notice of an impending assault, “its special-relationship-based duty includes an obligation to take reasonable, relatively simple, and minimally burdensome steps to attempt to avert that danger.” (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 250.) This duty to protect visitors from wrongful acts of third persons arises “where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.) “[T]he existence of a legal duty is a question of law for the court to determine.” (Delgado, at p. 237.) “The existence and scope of any duty, in turn, depends on the foreseeability of the harm, which, in that context, is also a legal issue for the court. [Citation.]” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 150.)
In Delgado, the California Supreme Court found a special-relationship-based duty to take minimally burdensome steps to avert a danger where the guard for the defendant bar knew of an impending fight between the plaintiff and his assailants: the plaintiff’s wife had informed the bar’s guard “ ‘there was going to be a fight,’ ” and the guard himself observed hostile stares between the plaintiff and the assailants. (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at pp. 231, 245.) The guard decided, under such circumstances, to ask the plaintiff to leave the bar. The plaintiff and his wife complied, and the assailants followed the plaintiff into the parking lot and the assault took place. (Id. at p. 231.) The court stated that the guard had perceived the danger and determined that separation of the parties was necessary, and the guard’s duty to help avert the danger arose from his actual notice of the impending assault. (Id. at pp. 246, 250.)
Notice of ongoing criminal conduct, sufficient to trigger a restaurant owner’s duty to take reasonable steps to avert harm to a patron, was also found in Morris v. De La Torre (2005) 36 Cal.4th 260, 264. In Morris, the plaintiff was stabbed multiple times while waiting in the defendant’s parking lot for his friends who had gone into the defendant’s restaurant to purchase food. The defendant’s employees watched the unfolding altercation through the restaurant’s plate glass windows, and stood by while the assailant entered the restaurant, demanded a knife, obtained a 12-inch knife from the kitchen, and returned to the parking lot to stab the plaintiff. (Id. at pp. 266-267.) As the court stated, the assaultive conduct was “occurring in plain view” and the employees “readily could foresee the immediate danger posed to [the] plaintiff.” (Id. at p. 271.)
Here, appellant has produced no evidence to demonstrate that Moore had actual notice of or even reasonable cause to anticipate the existence of the ongoing assault. Although his presence in and around the restroom at the time of the incident is established, there is nothing in the record in either Moore’s own statements or Jefferson’s statements to suggest Moore knew or should have known that there was anything more than “horseplay” occurring in the restroom. Although Moore has stated that the restroom was crowded and noisy, two pairs of legs were in one stall, and some males were looking over or under into a stall, he maintained that nothing about this was unusual, and he had previously seen young males standing on the commode looking into another stall and throwing paper at their friends. Further, the assault did not occur in plain view, but rather within the handicapped stall in the back of the restroom. Moore stated the only unusual thing he observed was a woman walk out of the restroom, but even then, he stated the woman did not appear to be in distress, and appellant admits she walked past Moore and said nothing.
There is no evidence Moore observed circumstances suggesting an assault or any other crime was taking place; thus no duty to protect appellant from ongoing harm arose.
Disposition
The judgment is affirmed. Costs to respondents.
We concur. JONES, P.J., GEMELLO, J.
Similarly, in Noble, a plaintiff was assaulted in the parking lot of Dodgers Stadium. The court stated, “No one can reasonably contend that even a significant increase in police personnel will prevent all crime or any particular crime. . . . [¶] Further it is one thing for an expert to testify concerning the mechanical devices such as locks, safes, fences, etc. which are designed to protect property by ‘hardening the target,’ it is quite another for such expert to discuss deterring conduct such as rape, robbery or physical assaults.” (Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at p. 918, fn. omitted.) The court concluded, “The present case is a classic example of a plaintiff establishing what could be described as abstract negligence, in the context that the Dodgers’ security didn’t comport with [the] plaintiffs’ expert’s or the jury’s notion of ‘adequacy,’ but failing to prove any causal connection between the negligence and the injury.” (Ibid.)