Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-08-CV114437.
PREMO, ACTING P.J.
In this premises liability case, the trial court granted summary judgment (Code Civ. Proc., § 437c) in favor of defendant Diamond S.J. Enterprise, Inc., doing business as Vivid Nightclub (defendant). The trial court concluded that plaintiffs Bryan Marotta and Brandi Keltner-Romanowsky “cannot establish the existence of a legal duty, breach of duty, or causation to support their claim.” Plaintiffs appeal from the judgment and from the trial court’s denial of their motion to vacate the judgment. We shall affirm.
Hereafter all unspecified section references are to the Code of Civil Procedure.
I. Factual and Procedural Background
According to the allegations of the complaint, plaintiffs were patrons at the Vivid Nightclub on August 17, 2007, when they were “assaulted and battered by an unidentified individual.” Plaintiffs alleged that the assailant, sued as “Doe 1, ” initiated a “verbal and physical altercation with Plaintiffs.” Doe 1 approached plaintiff Keltner-Romanowsky “as she was standing in a privately rented area of the [nightclub]” and pushed her to the ground by the throat. Plaintiff Marotta rushed to her aid and was punched by Doe 1. According to plaintiffs, defendant “negligently failed to protect Plaintiffs from injury from foreseeable criminal acts of third persons, causing injury to Plaintiffs.”
Plaintiffs filed the complaint on June 10, 2008. Plaintiffs were represented by counsel until approximately November 4, 2008, when their attorney substituted out and plaintiffs proceeded in propria persona. Current counsel became counsel of record on August 6, 2009. Defendant filed a motion for summary judgment on August 14, 2009.
Defendant’s motion for summary judgment was based upon its contention that plaintiffs could not prove defendant breached a duty of care or that any alleged breach caused their injuries. In support, defendant presented evidence to show that (1) on the night of the incident plaintiffs had purchased “bottle service, ” (2) defendant had security personnel present at the time of the incident, (3) plaintiffs were consuming alcohol, (4) plaintiffs were not aware of any prior similar incidents, (5) on the night of the incident defendant was not aware of any complaints of unruly patrons or aggressive conduct “prior to and up to the time of the incident involving the plaintiffs, ” (6) plaintiffs were assaulted by an unknown assailant, (7) plaintiffs cannot identify the assailant, (8) the assault occurred “quickly and rapidly, ” (9) two of defendant’s security personnel “intervened immediately and removed the unknown assailant, ” and (10) the club manager “immediately” called the police.
Among the evidence defendant submitted in support of these facts is plaintiffs’ responses to written interrogatories in which they state, “Plaintiffs had the presumption of protection by the bouncer that had been stationed at their table from approximately 10:30 p.m. until midnight. Plaintiffs were told by the bouncer that he would be stationed at or near their table for the course of the evening to prevent other patrons from entering the area, as [plaintiffs] had purchased a special service from the Club known as bottle service. At approximately midnight, the bouncer left the area for approximately 40 minutes during which time Plaintiffs were accosted by the unknown assailant. The assailant was then escorted from the bar by 2 other bouncers through a rear entrance.”
According to the declaration of defendant’s president, Jenny Wolfes, “bottle service” consists of “providing patrons a table area with a specific bottle of alcohol and various ‘mixers’ like soda and orange juice for a fixed price. When patrons purchase this service, they are provided a table area for their beverages. The table areas are not roped off, and patrons are not assigned or provided security personnel for their specific table.”
Defendant’s manager, William Coffman, stated that defendant’s entertainment permit requires it to have at least two security personnel per 100 patrons and the club’s maximum occupancy at the time of the incident was 1, 287. On the night of the incident, defendant had at least 20 security persons present in and around the premises.
Plaintiffs did not submit evidence to dispute some of the facts set forth in defendant’s separate statement, maintaining only that they “do not have sufficient information to respond.” Up to this point plaintiffs had conducted no discovery. They did not ask for a continuance under section 437c, subdivision (h) to allow them to conduct discovery.
Plaintiffs purported to dispute other facts with facts contained in their own declarations. Plaintiff Keltner-Romanowsky stated in her declaration that plaintiff Marotta had “paid for a private service to be away from the general environment and in order to be safe.” “When the bouncer assigned to our area left for approximately 40 minutes, a man came over and after making rude and unsolicited comments to me. [Sic.] This man the proceeded [sic] to knock me to the ground.” Marotta tried to help and, “Instead of treating me and [Marotta] as the victims, the security personal [sic] of defendant restrained and imprisoned both [Marotta] and his uncle. I requested that the security keep the assailant from leaving the premises. They ignored my requests and instead kept [Marotta] and his uncle imprisoned in a separate room or holding cell for approximately fifteen (15) minutes.” Marotta’s declaration contained the same description. Defendant objected to portions of both declarations on grounds the facts recited were irrelevant or were improper opinions and that the declarants lacked personal knowledge of the facts stated.
As to defendant’s material fact No. 4, which stated that plaintiffs knew of no other prior similar incidents, plaintiffs responded: “Plaintiffs have just discovered that the California Dept. of Alcoholic Beverage Control filed at least two accusations against the defendant for similar incidents. Specifically, an accusation was filed in December 2007 with charges that the Defendant ‘Obstructed justice and delayed police officers while conducting investigation.’ Further, an accusation was filed in August 2008 charging the Defendant with: ‘Disorderly premises. Created condition contrary to public welfare and morals.’ ” In support of this fact plaintiffs produced printed pages from the California Alcoholic Beverage Control (ABC) Web site. Defendant objected to this evidence on grounds it was irrelevant, lacked foundation, was improperly authenticated, and was hearsay.
At the hearing on the motion held November 12, 2009, defendant’s counsel reminded the court of the evidentiary objections. The trial court took the matter under submission. The following day, the trial court issued its order granting the motion and the clerk of the court served the court’s written ruling that day. In its written order granting the motion for summary judgment, the trial court denied “without prejudice” plaintiffs’ request for leave to amend the complaint. (The only mention of such a motion in the record before us appears in plaintiffs’ memorandum of points and authorities in which counsel stated, “Plaintiffs are also moving to amend.”) The trial court’s order goes on to grant the summary judgment motion on the grounds that plaintiffs did not raise a triable issue as to breach of duty or causation, citing material facts Nos. 4, 5, 6, 7, 8, 9 and 10. The court did not rule on defendant’s evidentiary objections.
On November 17, 2009, the trial court signed a judgment, the form of which had been prepared by defense counsel. The judgment stated that plaintiffs “shall take nothing” and that defendant “shall recover from said plaintiffs costs of the suit in the sum of $520.00.” The judgment was filed November 20, 2009, and notice of entry of judgment was mailed on December 2, 2009.
Plaintiffs moved to vacate the judgment, arguing that defendant had not given counsel the five days allowed by California Rules of Court, rule 3.1312 (rule 3.1312), which pertains to the preparation and submission of proposed orders. Plaintiffs argued that the judgment “did not follow the court’s order and that the inclusion of costs was improper and premature.” In his response, counsel for defendant explained that a memorandum of costs was filed on December 9, 2009, and that it was “consistent with the judgment” that was entered two weeks earlier.
After obtaining an order shortening time for notice of a motion to amend the complaint, plaintiffs filed an amended notice of motion to vacate the judgment and for leave to amend the complaint. Plaintiffs sought leave to amend the complaint to add the allegations pertaining to defendant’s employees taking the side of the assailant and helping him escape. They asked the court to vacate the judgment on the ground it was improperly obtained.
The trial court denied the motion to vacate, finding “no basis” for it. Since the ruling left the judgment intact, the court did not reach the motion to amend.
II. Discussion
A. The Summary Judgment Motion
Plaintiffs maintain that defendant did not meet its burden in moving for summary judgment because defendant did not affirmatively negate any element of plaintiffs’ case. Plaintiffs fault defendant for failing to submit the testimony of its security personnel, bartenders, and others on duty at the time of the assault. They also argue that defendant failed to disclose the identity of the assailant, which, although unknown to plaintiffs, must “certainly” be known to defendant. The argument misconstrues defendant’s burden.
In order to prevail on a motion for summary judgment, a defendant must show 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. (§ 437c, subd. (p)(2).) A moving defendant need not affirmatively negatea cause of action, which is what plaintiffs’ argument asserts. Rather, defendant has the burden of “showing” that one or more elements of the cause of action cannot be established. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) That means that defendant may carry its burden by showing, through the evidence produced in connection with its motion, that plaintiffs cannot reasonably expect to establish a prima facie case, “a showing that would forecast the inevitability of a nonsuit in defendants’ favor.” (Ibid.) Once defendant makes that showing, the burden shifts to plaintiffs to show a triable issue of one or more material facts. “The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(2).)
Because a motion for summary judgment raises only questions of law, we independently review the parties’ supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) “ ‘We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) Before getting to the evidence, however, we must examine the pleadings and the pertinent law to decide which facts are material. (Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 1569; Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1325.) “The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A ‘moving party need not “... refute liability on some theoretical possibility not included in the pleadings.” ’ ” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Stated differently, a plaintiff “may not defeat a summary judgment motion by producing evidence to support claims that are outside the issues framed by the pleadings.” (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 674, fn. 6.)
Plaintiffs’ complaint alleged that defendant was negligent because plaintiffs were injured by an unknown assailant at defendant’s nightclub. In order to prove liability on this basis, plaintiffs would have to show that defendant owed plaintiffs a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries they suffered. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) A general duty of care owed by landowners to patrons or tenants is 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. (Ibid.) But even where third-party criminal acts are highly foreseeable, a plaintiff still has to show that the defendant’s breach of the duty was a proximate cause of the injury the plaintiffs suffered. (Saelzler, supra, 25 Cal.4th at pp. 771, 781.)
We shall assume that defendant had a duty to provide a reasonable level of security for patrons on its premises. Nevertheless, plaintiffs would have had to prove at trial that defendant breached that duty. Defendant carried its burden to show that plaintiffs could not establish the element of breach by showing that it had deployed at least 20 security personnel in and around the establishment at the time of the incident. Plaintiffs offered nothing to show that defendant’s method of providing security was not reasonable. Indeed, plaintiffs do not even speculate about what defendant might have done other than what it did. Should defendant have engaged 30 bouncers? 40? Plaintiffs do not say.
The only clue we have to plaintiffs’ position on the element of breach is that contained in their statements that the bouncer, who was in the area of their table earlier in the night, had moved away around midnight for about 40 minutes. They imply that, had the bouncer remained in the area, there would have been no assault. But even if we assume a jury could find that the bouncer’s having left the area of plaintiffs’ table was a breach of the duty of care, plaintiffs would still have had to show that his doing so was a substantial factor in bringing about their injuries. (Saelzler, supra, 25 Cal.4th at p. 769.) That is, they would have had to submit some evidence beyond mere speculation to show that it was more probable than not that had the bouncer remained in the “area” they would not have been assaulted. (Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1385-1386.) Plaintiffs made no effort to do that.
In their opposition to the summary judgment motion, plaintiffs alleged, in effect, that the bouncers were in cahoots with the attacker, which was why plaintiffs had been unable to identify the assailant. This new allegation, raised for the first time in plaintiffs’ opposition papers, has nothing to do with the allegations of the complaint, which was that defendant’s negligence caused the assaults. Plaintiffs’ attempt to raise a triable issue with pages from the ABC Web site is futile. Even if the pages were not inadmissible hearsay, they have nothing to do with either the breach or causation elements of plaintiffs’ claim.
Since plaintiffs made no attempt to offer evidence to show that any act or omission on defendant’s part was the proximate cause of the attack, the trial court did not err in granting defendant’s motion for summary judgment.
B. The Motion to Vacate the Judgment
Plaintiffs next argue that the trial court erred in refusing to vacate the judgment, arguing that defendant failed to adhere to rule 3.1312 in that the “order submitted did not reflect what the court did, nor did it properly deal with the costs issue.” We summarily reject the first part of the argument as the proposed ruling defendant submitted was not a proposed order, it was the proposed judgment. The judgment flowed, as a matter of law, from the written order the trial court had already issued. (§ 437c.) Accordingly, rule 3.1312 has no application.
As to inclusion of the costs in the judgment, we agree that was premature but it is not reversible error. California Rules of Court, rule 3.1700 (rule 3.1700) provides that the prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment. (Rule 3.1700(a)(1).) “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Rule 3.1700(b)(1).) “After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.” (Rule 3.1700(b)(4).)
Defendant improperly included the amount of its costs ($520) in the proposed judgment, which the trial court signed without modification. Notice of entry of judgment was mailed on December 2, 2009. Defendant represents that, on December 9, 2009, it served and filed a memorandum of costs “consistent with” the $520 reflected on the judgment. Defendant further represents that plaintiffs did not file any motion to tax costs. Although we do not have any memorandum of costs in the appendix plaintiffs have prepared for this appeal, plaintiffs do not dispute defendant’s representations, and the superior court’s docket, which plaintiffs have provided, confirms the filing of a memorandum of costs on December 9, 2009. Indeed, plaintiffs have not challenged defendant’s right to costs nor the amount of costs either below or on appeal. Accordingly, plaintiffs have not affirmatively shown any error warranting reversal because, even if we were to strike the costs as having been prematurely included in the judgment, the clerk would have been bound by rule 3.1700 to insert the unchallenged $520 claimed in the timely costs bill. Plaintiffs give no other reason for vacating the judgment. Accordingly, the trial court did not err in concluding that there was no basis for granting the motion.
Plaintiffs argue that even though the trial court denied the motion to vacate the judgment the court erred in refusing to grant leave to amend the complaint. But the only way the court could allow an amendment after judgment would be to vacate the judgment under section 473, subdivision (b) for “mistake, inadvertence, surprise, or excusable neglect.” (Risco v. Reuss (1941) 45 Cal.App.2d 243, 245.) Since the court properly refused to vacate the judgment, the court did not err in refusing to consider the request for leave to amend.
III. Disposition
The judgment is affirmed. Defendant shall recover its costs on appeal.
WE CONCUR: Elia, J., Lucas, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.