Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge, No. RIC427931
Homan & Stone, Ronald C. Homan, John P. Garcia; Law Offices of Fred J. Knez and Fred J. Knez for Plaintiffs and Appellants.
McMahon Law Firm and Robert J. Lynch for Defendant and Respondent.
McKinster, J.
This is an appeal from the summary judgment entered in favor of defendant Patrol Plus, Inc. (hereafter Patrol Plus) and against plaintiffs Jolene Marie Lomeli, Rachel Ann Lomeli, Jose Luis Lomeli III, and Devon Ray Davis, and Rayleen Ann Lomeli, their guardian ad litem (hereafter plaintiffs) on plaintiffs’ complaint for damages resulting from negligence that caused personal injury. In particular, the minor plaintiffs suffered injuries in a fire that occurred in the afternoon of January 15, 2005, when they were playing in an unlocked storage shed at the Avalon Mobile Home Park, and one of them lit a lighter that ignited model airplane fuel stored in the room. Patrol Plus is a security and patrol company hired by the owner of the mobilehome park to patrol the park three times each day between the hours of 6:00 p.m. and 6:00 a.m.
Plaintiffs contend there are triable issues of material fact regarding whether Patrol Plus breached its duty of care, and therefore the trial court erred in granting the summary judgment motion. We disagree, and therefore will affirm.
PROCEDURAL BACKGROUND
In their original complaint filed in March 2005, plaintiffs named the mobilehome park and its owners as defendants. Plaintiffs amended that pleading in October 2005 to substitute Patrol Plus for a fictitiously named doe defendant. As a result of that amendment, plaintiffs alleged that Patrol Plus and the other named defendants were the agents and employees of each other; that the defendants “owned, operated, managed, maintained and/or were in possession and control” of the mobilehome park premises and buildings; and that defendants were “the owners, manufacturers, suppliers, distributors, possessors or had under their custody and control a container of model aircraft and or racing fuel [hereinafter ‘fuel container’]” at the mobilehome park premises.
Patrol Plus filed its answer, in the form of a general denial, to plaintiffs’ complaint, and asserted numerous affirmative defenses, including the absence of any liability for plaintiffs’ injuries. Patrol Plus filed a motion for summary judgment on September 20, 2007. In that motion Patrol Plus asserted that it is not liable to plaintiffs because it did not own or control the mobilehome park property; it did not own, control, supply, manufacture, or distribute the model airplane fuel; and its acts were not a proximate cause of plaintiffs’ injuries. In its separate statement of material facts, Patrol Plus asserted that the following facts, among others, are undisputed: The fire that injured plaintiffs occurred in a storage shed at Avalon Mobile Home Park; the fire started before 4:23 p.m. on January 15, 2005; and Patrol Plus has a contract with Avalon Mobile Home Park to patrol the Avalon premises three times every day between 6:00 p.m. and 6:00 a.m.
Plaintiffs take issue with the term “shed” to describe the structure but do not dispute the location where the fire occurred.
Patrol Plus also presented evidence to show that it patrolled at 6:26 p.m., 9:30 p.m., and 12:25 a.m. on the evening of January 14 and morning of January 15, 2005. Plaintiffs disputed that fact because Patrol Plus apparently could not produce its inspection report for that patrol. The fact is not pertinent to our resolution of this appeal and therefore we will not address it further.
In their opposition, plaintiffs purported to dispute various facts including whether the storage shed was locked on the day of the fire, but it did not dispute the above noted facts. Instead, plaintiffs disputed the source and extent of the duty owed by Patrol Plus. Plaintiffs also submitted the opinion of an expert on the security patrol business to support their claim that Patrol Plus had a duty to inspect all areas of the mobilehome park. Because, as we discuss below, the above noted facts are dispositive, we will not recount the other facts that plaintiffs claim are disputed.
The trial court found that the undisputed facts did not establish a duty on the part of Patrol Plus to plaintiffs. Therefore, the trial court granted Patrol Plus’s summary judgment motion. This appeal is from that judgment.
DISCUSSION
Plaintiffs contend, among other things, that triable issues of material fact exist regarding (a) whether Patrol Plus had a duty to inspect the door to the storage shed where the fuel was stored and (b) whether that door was locked in the hours preceding the fire. Plaintiffs argue, as they did in the trial court, that the duty of Patrol Plus is not defined exclusively by its contract with Avalon Mobile Home Park, and instead includes the duty to maintain the premises in a safe and secure condition. We disagree, for reasons we now explain.
1.
STANDARD OF REVIEW
On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 849, 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at p. 850.)
2.
ANALYSIS
Plaintiffs’ complaint, as noted above, alleged a claim against Patrol Plus based on negligence. In order to prevail on its summary judgment motion, Patrol Plus had to present facts to negate an element of the negligence claim. Negligence requires proof of duty, breach of duty, causation, and injury or damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)
A. Duty
Patrol Plus presented evidence in support of its summary judgment motion to show that under the terms of its agreement with Avalon Mobile Home Park it did not have a duty to inspect the door to the storage shed where the fuel was stored and where the fire erupted. Plaintiffs, in turn, asserted that Patrol Plus as a security patrol company had a general duty to ensure the safety and security of the premises.
To support their duty claim, both in the trial court and on appeal, plaintiffs rely on Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193 (Marois). In other words, plaintiffs contend that security and patrol companies such as Patrol Plus have a duty as a matter of law to ensure the safety and security of the premises they patrol. Plaintiffs are incorrect.
Contrary to plaintiffs’ apparent view, Marois stands for the unremarkable proposition that security guards hired to protect customers of a Jack-In-The-Box restaurant have a duty to act reasonably under the circumstances. (Marois, supra, 162 Cal.App.3d at p. 202.) The circumstances in Marois included the fact that two on-duty security guards watched a man use a baseball bat first to vandalize a kiosk located in the restaurant parking lot and then to attack the plaintiff, a Jack-In-The-Box customer, when he tried to intercede and prevent the vandalism. The Marois court held in part that, “By contracting with the business to provide security services, the security guard creates a special relationship between himself and the business’s customers. This relationship, in and of itself, is sufficient to impose on the guard the obligation to act affirmatively to protect such customers while they are on the business premises. [Citations.]” (Id. at p. 200, fn. omitted.) That special relationship creates an exception to the general rule that a person does not have a duty to come to the aid of another or to control the conduct of third persons. (Id. at p. 199.)
As we noted in Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906 (Titus), “Significantly, the court [in Marois] held that, as a matter of law, the security guards could not be liable for failing to restrain the assailant until the apparent risk of physical injury became ‘immediate.’ [Citation.] They could not be held liable, therefore, for allowing the assailant to initially remain on the premises or for failing to restrain him while he vandalized the kiosk. When, however, ‘an individual is being physically assaulted, or where another individual is approached by a bat-wielding assailant,’ the court explained, there is a ‘clearly foreseeable risk’ to which the security guards should respond. [Citation.]” (Id. at p. 917, citing Marois, supra, 162 Cal.App.3d at pp. 200-202.) In short, Marois did not hold as plaintiffs contend that security guards have a general duty to ensure the safety of the business premises and its customers.
The critical fact in Marois that distinguishes it from this case is that the security officers were present and on duty when the plaintiff was assaulted in the restaurant parking lot by a man wielding a baseball bat. Patrol Plus was not present when the plaintiffs entered the storage shed, or when the fire erupted; nor did the terms of its contract with Avalon Mobile Home Park require it to be present at those times. Contrary to plaintiffs’ argument, the terms of the contract between Patrol Plus and the mobilehome park define the extent of Patrol Plus’s duty with respect to the mobilehome park premises. That contract did not require Patrol Plus to maintain the premises in a safe and secure condition, as plaintiffs contend; it required Patrol Plus to patrol the mobilehome park premises three times every day between 6:00 p.m. and 6:00 a.m. In short, whether Patrol Plus had a duty to inspect the storage shed to determine whether it was locked depended on whether that inspection was required under the terms of its contract with the mobilehome park.
However, even if we were to agree with plaintiffs and were to conclude that Patrol Plus had a duty to inspect the door to the storage shed, we nevertheless would conclude that breach of that presumed duty was not the cause of plaintiffs’ injury. Therefore, we will not discuss the issue of duty or the facts pertinent to whether the door to the storage shed was locked or opened on the day the fire occurred in any further detail because those issues are not dispositive. The dispositive issue in our view, as we now explain, is causation, or more correctly the lack thereof.
B. Causation
Assuming without actually deciding that Patrol Plus had a duty to inspect the storage shed and that it breached that duty, under the terms of its contract Patrol Plus would have inspected the Avalon Mobile Home Park no later than 6:00 a.m. on the day of the fire. According to the undisputed evidence, the fire occurred sometime around 4:00 p.m., as evidenced by the fact that fire department personnel arrived around 4:20 p.m. Assuming Patrol Plus had discovered the unlocked door to the storage shed and had either locked the door, or at the very least had reported the fact to the mobilehome park owners, Patrol Plus did not return to the mobilehome park again until 6:00 p.m., some two hours after the fire. In the intervening hours during which Patrol Plus had no duty or obligation with respect to the mobilehome park property, the door to the storage shed could easily have remained open or been opened again. Plaintiffs simply cannot demonstrate that the door to the storage shed was open because Patrol Plus failed to check the door and report its condition, or even because it failed to actually lock the door some 10 hours before the fire erupted. “As Professors Prosser and Keeton observe, ‘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 v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776, quoting Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269, emphasis omitted.) For the same reason, a court must grant a defendant’s summary judgment motion.
According to plaintiffs’ own evidence, “the lock and hasp on the shed had been ‘pulled loose’ from the door but there was no sign of prying, just rotten wood.” Plaintiffs also asserted that a question of fact existed regarding whether the latch on the door had been broken for at least two weeks prior to the fire. Under any articulation, Patrol Plus did not have a duty to repair the latch, and had no control over whether the mobilehome park owner made the repair.
Because the undisputed facts in this case do not, as a matter of law, establish causation, we must affirm the summary judgment in this case.
DISPOSITION
The judgment is affirmed.
Patrol Plus, Inc. to recover its costs on appeal.
We concur: Ramirez, P.J., Miller, J.