Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. LC071228. Richard A. Adler, Judge.
Law Offices of Vatché Chorbajian and Vatché Chorbajian for Plaintiff and Appellant.
Haight Brown & Bonesteel, Rita Gunasekaran and Kenneth G. Anderson for Defendant and Respondent Peppy LLC.
Grace, Cosgrove & Schirm, David K. Schultz and Melodee A. Yee for Defendant and Respondent Quality Security Services, Inc.
MALLANO, P. J.
This case arises out of a robbery and shooting of plaintiff Ishac Ohannessian, the proprietor of a jewelry store in Encino Place, a shopping center in Encino. Ohannessian sued his landlord, Peppy LLC (Peppy), and its security guard company, Quality Security Services, Inc. (QSS), for negligence and premises liability. The trial court granted the summary judgment motions of Peppy and QSS. Ohannessian appealed. We affirm the judgment because as a matter of law neither Peppy nor QSS owed a duty to protect Ohannessian from the third party criminal assault and no act or omission on their part was a cause of the assault. We also conclude that the trial court did not abuse its discretion in denying Ohannessian’s request for a continuance to depose the security guard, whose declaration was submitted by QSS in support of its motion.
BACKGROUND
We derive the background from the evidence submitted by the parties in support of, and in opposition to, the summary judgment motions. Both motions are based on substantially the same evidence, but additional evidence was submitted in connection with QSS’s motion, which was filed about a month after Peppy’s motion was granted. In our review, we independently examine the record to determine whether triable issues of fact exist to reinstate the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) In performing our de novo review, we view the evidence in the light most favorable to Ohannessian as the losing party, liberally construing his evidence, strictly construing the moving parties’ evidence, and resolving any evidentiary doubts or ambiguities in Ohannessian’s favor. (Ibid.)
A. Evidence on Both Peppy’s and QSS’s Motions
Ohannessian’s store, Pascal’s Jewelry, was located on the first floor of Encino Place, a three-story open-air shopping center on Ventura Boulevard in Encino. The front of the store had glass walls and a glass security door which required someone inside the store to activate a buzzer to allow the customer to enter the store. A separate office at the back of the store had a one-way mirror which enabled an employee in the office to observe customers in the store. The store also had a security camera connected to a surveillance television and a video recording device, but the video device was not working on the day of the incident. The store also had a silent alarm system connected to a private security service.
Ohannessian leased the space for his store from Peppy pursuant to a written lease executed in December 1991. Paragraph 15(c) of the lease provided in pertinent part: “Tenant acknowledges that Landlord’s election to provide mechanical surveillance or to post security personnel in the Building is solely within Landlord’s discretion; Landlord shall have no liability in connection with the decision whether or not to provide such services and Tenant hereby waives all claims based thereon. Landlord shall not be liable for losses due to theft, vandalism, or like causes. . . .”
In October 2001, Peppy contracted with QSS to provide an unarmed, roving security guard for the common areas of the shopping center on a 24-hour basis. Although the guard was unarmed, he wore a uniform with a badge identifying him as a security guard. Part of the tenants’ monthly payments to Peppy included charges for the security guard.
Ohannessian’s store opened for business about 11:00 a.m. on Tuesday, May 18, 2004. The adjacent shops, a clothing store and a hair salon, also were open at that time, but nearby was a vacant space, formerly leased by a restaurant. Ohannessian was in the back office area of the jewelry store and an employee, Raffi Baltekian was working at the counter. About 11:15 a.m., Baltekian buzzed into the store a man who appeared to be a customer. Baltekian became suspicious of the man and said something in Armenian to Ohannessian. The man drew a gun, pointed it at Baltekian’s head, and pushed Baltekian to the floor. When Ohannessian saw Baltekian being pushed to the floor, Ohannessian picked up his own firearm, which he kept in the office, and fired at the assailant through the office one-way mirror. Ohannessian then stepped out of the office and fired again at the assailant, who charged Ohannessian. The assailant struggled with Ohannessian, gained control of Ohannessian’s gun, and shot Ohannessian in the chest. The assailant fled but was later apprehended by the police.
The only prior armed robbery at the jewelry store occurred in 1992; the store was burglarized after business hours on two prior occasions, the most recent burglary occurring in about 1998. Apart from these incidents at the jewelry store, and incidents of shoplifting at other stores, Baltekian was not aware of any crimes at other stores in the mall. According to Sarkis Daniyelyan, another employee of the jewelry store, there were no other armed robberies or assaults in the mall, which was in a low-crime area. Los Angeles Police Officer James Nuttall testified in his deposition that the mall was in a fairly safe, low-crime area where robberies were not common.
Peppy’s security expert, Daniel Sullivan, declared that, based on his experience and training, as well as an analysis of the discovery and deposition testimony in the case, he was of the opinion that Peppy acted reasonably and within the standard of care for commercial security by contracting with QSS, properly licensed by the State of California, to provide unarmed security patrol services for the common areas. Sullivan also opined that the vacant restaurant space nearby had no bearing on the shooting incident, the placement of additional cameras would have had no bearing on the incident, and no acts, omissions, or security deficiencies by Peppy had a direct causal relationship to the shooting.
In opposition to Peppy’s motion, Ohannessian declared that Peppy used the QSS security guard “like an office person” to run errands off the premises. Ohannessian also saw the guard reading the paper and drinking coffee at the coffee shop for long periods of time. After each of the crimes involving his store, Ohannessian discussed his safety concerns with Peppy’s resident manager, who reassured him that Peppy would check into the matter and make sure that the guard protection was adequate. According to Ohannessian, on the day of one of the prior after-hours burglaries at the jewelry store, the same security guard on duty at the time of the 2004 shooting (but working for a different company, not QSS) was found sleeping in his car while he was supposed to be on patrol. Ohannessian sued the security company and was paid a $40,000 settlement.
Ohannessian also submitted declarations of several other Encino Place tenants who stated that “some days [the guard] was there and some days he wasn’t anywhere to be seen.” Each of six tenants declared that he or she did not see the security guard at any time on the day of the shooting. Ohannessian’s security expert, Darryl Thibault, declared that Peppy was put on notice that serious criminal activity such as the jewelry store shooting was reasonably foreseeable because of the two previous incidents at the store in 1992 (armed robbery) and 1998 (burglary) and the calls to the police station for service to the mall during the preceding three years.
The trial court sustained Peppy’s objections to the portions of Thibault’s declaration setting out purported crime statistics reflected in police records from May 2001 to May 2004. This ruling is not challenged on appeal and we thus do not consider any evidence of crime statistics.
B. Additional Evidence on QSS’s Motion
In support of QSS’s motion for summary judgment, Bradley Guy, the owner of QSS, declared that Peppy made the decision to employ QSS to patrol the common areas of Encino Place with unarmed guards. Peppy did not contract with QSS to patrol the interiors of any store. The guard assigned to patrol the mall on May 18, 2004, Richard Ranasinghe, began his shift at 7:00 a.m. The unarmed guards were trained and instructed to observe and report any suspicious activity; in the event of an armed robbery, the guards were to report the crime immediately, but they were not to intervene. Guy testified in his deposition that on the day of the shooting he was in his office at the mall when he saw the police activity from his window; as he left his office, he met Ranasinghe in the hallway, who was coming to inform him of the shooting. Ranasinghe told him that there was a shooting in the jewelry store. Guy met up with Ranasinghe within minutes of the arrival of the police.
According to Ranasinghe’s declaration, about 11:00 a.m. on May 18, 2004, he had completed his patrol of the second floor common area and descended using the escalator to the ground floor. He passed the jewelry store but did not see anything unusual or out of place. There were a dozen or more people on the ground floor, all of whom appeared to be patrons of the mall. He went to the underground parking area, where his patrol took about 10 minutes. When he emerged from the parking area, he saw police cars parked outside and then saw police officers at the jewelry store and concluded that the store had been robbed. He was not interviewed by the police officers.
Sullivan provided a declaration in support of QSS’s motion in which he expressed his opinions that (1) the unarmed security patrol services provided by QSS were reasonable, appropriate, and within the standard of care for the industry; and (2) nothing QSS did or failed to do had a direct causal relationship to the shooting.
In opposition to QSS’s motion, Ohannessian submitted evidence that after the nearby restaurant closed in 2002, he came to an agreement with Ranasinghe that Ranasinghe would stop by the jewelry store on his morning patrol and spend some time there, for which Ohannessian paid him $50 a week. Ranasinghe regularly stopped in the store on his morning patrol, except for the day of the shooting. Neither Ohannessian, Baltekian, nor several other mall tenants saw Ranasinghe on the day of the shooting, which seemed unusual to them. Ohannessian declared that after the police arrived at the scene of the shooting, they “did not locate the security guard and were unable to interview him, as is reflected in the police report.” But the police report is silent as to whether the police attempted to locate or interview the security guard. It is undisputed that Ranasinghe did not witness the robbery or shooting.
Ohannessian’s security expert, Thibault, provided a declaration setting out his opinions that (1) in the months leading up to the shooting, QSS did not perform in accordance with minimally accepted professional standards in the guard industry because the mall was “poorly and irregularly patrolled”; (2) Ranasinghe’s response on the day of the shooting did not meet minimal security industry standards because he failed to approach the police officers at the scene and make himself available to offer information about the site; and (3) there was a causal relationship between the shooting and the substandard performance of QSS in patrolling the mall because robbers are known to case stores before committing robberies and the absence of a reasonably professional guard to serve as a deterrent is an invitation to prospective robbers.
In response to the evidence of Ohannessian’s oral agreement with Ranasinghe, Guy declared that the QSS guards are specifically instructed that gratuities or extra monies are not allowed. Had Guy been aware of Ranasinghe’s activities, Guy would have told him that he was working outside his scope of employment and Guy would have “terminated [him] on the spot.”
C. Request for Continuance
On August 1, 2006, QSS obtained a court order permitting it to set its summary judgment motion for hearing on October 24, 2006, within 30 days of the trial date. On August 10, 2006, QSS filed its motion. Ohannessian filed his opposition to the motion on October 10, 2006. One sentence in Ohannessian’s memorandum of points and authorities in opposition to the motion states that “a continuance of any determination would be appropriate to allow the guard’s deposition if the court is inclined otherwise than to deny the motion.” Ohannessian’s attorney provided a declaration stating: “We noticed the deposition of . . . Ranasinghe . . . . He failed to appear for deposition. Now, we are told that he is sick and back in Maryland. We have not been provided with a reasonable opportunity to depose . . . Ranasinghe prior to the filing of this Opposition. This prejudices our ability to explore the various factual issues raised.”
At the hearing on QSS’s motion on October 24, 2006, Ohannessian’s attorney asked for a continuance to take Ranasinghe’s deposition. The attorney informed the court that Ranasinghe’s deposition was originally scheduled for the first week of September in 2006, but was rescheduled several times. Shortly before opposition to the motion was due, Ohannessian’s attorney received an offer to depose Ranasinghe on October 9 in Maryland, but his deposition was not taken. In opposing a continuance, QSS’s attorney informed the court that Ranasinghe had been employed at the mall up to July 2006, and he was available and could have been deposed from the time the crime occurred up to July 2006.
After taking the matters under submission, the court issued a ruling denying the request for continuance. The minute order provided: “First, the Court notes that oral continuances are not proper since [Code of Civil Procedure section] 437c requires any continuance to be done by way of affidavit. Citations. To the extent the opposition papers reference a continuance if the Court is inclined to grant the motion . . ., such a request is not proper.” The court then stated that the plaintiff did not present an affidavit discussing certain factors, including why additional time was needed to take the deposition. The court also noted that “the request for continuance is improper because [Ohannessian] has failed to exercise due diligence in seeking to complete discovery.” The court then set out the history of the case, noting that the complaint was filed in April 2005 and that the guard could have been deposed at any time through July 2006, a period of 15 months.
D. Trial Court Rulings
In its motion, Peppy argued that it was entitled to a judgment in its favor on the complaint based on three independent grounds: (1) Peppy owed no duty with respect to the criminal acts of the assailant; (2) assuming a duty, Peppy did not breach it; and (3) Ohannessian cannot establish a causal link between his injury and the alleged failure to provide security measures. The trial court granted Peppy’s summary judgment motion for all of the reasons set forth in the motion.
QSS also based its motion for summary judgment on three grounds: the lack of the elements of duty, breach, and causation. The court granted QSS’s motion on the grounds set forth in the motion.
Ohannessian appealed from the judgment. In its respondent’s brief, Peppy seeks attorney fees incurred on appeal pursuant to the attorney fee clause in the lease.
DISCUSSION
Ohannessian contends that summary judgment was improperly granted because both Peppy and QSS had a duty, both imposed by law and voluntarily assumed, to provide “visible 24-hour security guard protection to the plaintiff.” He does not contend that Peppy and QSS had a duty to provide an armed security guard nor that the guard had to be stationed in front of his store. Rather, the gist of his argument is that it is proper to impose the duty to provide protection from third party crime because the burden of providing a roving guard is minimal, as evidenced by Peppy’s actual provision of such protection, the cost for which was charged to the tenants. Ohannessian also maintains that summary judgment was improperly granted because of disputed facts as to the issues of breach and causation and that the trial court abused its discretion in denying his request for a continuance of QSS’s motion to take the deposition of the security guard.
Under the circumstances of this case, we conclude that neither Peppy nor QSS had a duty to provide Ohannessian with security guard protection, that the element of causation was not established, and that the court did not abuse its discretion in denying the request for a continuance.
A. Peppy’s and QSS’s Duty to Protect Others from Third Party Criminal Acts
“The existence and scope of a duty are questions of law for the court’s determination, and foreseeability is a critical factor in the analysis. When foreseeability is analyzed to determine the existence or scope of a duty, foreseeability is also a question of law. Citation.” (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1300.)
The analysis of the duty of a landlord to provide protection from foreseeable third party crime has been described as a “‘sliding-scale balancing formula,’” pursuant to which the foreseeability of the harm is balanced against the burden of the duty to be imposed. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.) First, the court must determine the specific measures the defendant should have taken to prevent the harm; second, the court must analyze the financial and social burdens on the landlord of the proposed measures; and third, the court must identify the nature of the third party conduct to be prevented and how foreseeable it was that this conduct would occur. (Ibid.) “‘Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.’” (Ibid.)
Thus, “‘duty in such circumstances is determined by a balancing of “foreseeability” of the criminal acts against the “burdensomeness, vagueness, and efficacy” of the proposed security measures.’ ([Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678–679].)” (Wiener, supra, 32 Cal.4th at p. 1147.) “‘[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.’” (Id. at p. 1146.) Because it is difficult, if not impossible, to predict criminal activity and to remove the means for committing crimes, we are required to “apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties.” (Id. at pp. 1149–1150.) And because the burden of hiring security guards is so extremely high, “the requisite foreseeability to trigger the burden could rarely, if ever, be proven without prior similar incidents.” (Id. at p. 1147.)
Applying the foregoing analysis, we conclude that, notwithstanding its contract with QSS, Peppy had no duty to provide “visible 24-hour security guard protection,” as urged by Ohannessian. The 2004 armed robbery and shooting in the store was not reasonably foreseeable because it could not be reasonably anticipated from one armed robbery 12 years before.
Ohannessian argues that the passage of time between the 1992 and 2004 robberies is irrelevant to the foreseeability analysis and that the key factors showing foreseeability are the similarity between the two robberies, the two prior after-hours burglaries at the store, and the risk posed by the neighboring vacant restaurant. Ohannessian maintains that the burglaries and vacant restaurant establish that the jewelry store remained “attractive to criminals as [a target] for robbery and burglary,” and hence the 2004 crime was foreseeable.
We reject Ohannessian’s argument that the passage of time between the 1992 and 2004 robberies is irrelevant. A single prior similar incident that is extremely remote in time does not meet the requirement of heightened foreseeability as shown in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181 (Sharon P.), where the plaintiff was sexually assaulted in an underground parking garage. The court refused to impose a duty on the owner of the garage to provide roving security guards because of the “garage’s 10-year history of crime-free existence” before the assault on the plaintiff and because the seven bank robberies on the street level of the building in the previous two years were not sufficiently similar to the sexual assault to establish a high degree of foreseeability. (Id. at p. 1195.) We conclude that the passage of time between the instant incident and a prior similar incident is a pertinent factor in the foreseeability analysis. Because of the 12-year gap separating the two incidents, the 2004 robbery reasonably could not be anticipated from the 1992 robbery.
In his reply brief, Ohannessian also refers to his deposition testimony regarding two armed robberies at nearby businesses — a liquor store and a bank —not located in Encino Place. But Ohannessian has not provided the dates or circumstances of these other robberies and therefore fails to demonstrate that these incidents are sufficiently similar to the 2004 incident to establish a high degree of foreseeability.
We also reject Ohannessian’s contention that the neighboring restaurant vacancy and prior nonassaultive crimes (such as shoplifting) establish foreseeability. Ohannessian has not provided evidence or authority to establish that a vacant space in a shopping mall is inherently dangerous or that it invites criminal activity. (See Sharon P., supra, 21 Cal.4th at p. 1192 [no evidence showed parking garage was inherently dangerous and court rejected a per se rule of foreseeability for underground parking structures].) In this case, the vacant restaurant space is not a factor that supports foreseeability.
Sharon P. acknowledged that two Court of Appeal decisions “had supported a finding of foreseeability ‘with regard to assaults occurring on properties that have some history of nonassaultive crime.’ Citations. But Sharon P. made it clear that extending this broadened view of reasonable foreseeability is warranted only when ‘it would be reasonable to anticipate that a person would be subject to violent attack if he or she were to be present at an otherwise foreseeable crime on the premises or if he or she were to interrupt such a crime in progress.’” (Wiener, supra, 32 Cal.4th at p. 1148.) Here, the evidence was undisputed that the mall was in a fairly safe, low-crime area and that apart from shoplifting, the only other prior nonassaultive crimes at the shopping center were two prior after-hours burglaries at the jewelry store. The two after-hours burglaries in 12 years are not reasonably foreseeable crimes within the meaning of Wiener. Even if we conclude that the two burglaries were reasonably foreseeable, it is not reasonably foreseeable that an innocent person would be present at the time or would interrupt such a crime in progress so as to be at risk of a violent attack. Thus, the two prior burglaries do not provide the necessary foreseeability to impose a duty on Peppy.
Ohannessian contends that a duty to provide a “visible 24-hour security guard” is warranted under the “sliding-scale balancing formula” because the burden on Peppy was extremely light, Peppy having voluntarily undertaken to provide such a guard and having collected monthly payments from the tenants for the guard service. Notwithstanding the charging to the tenants for the cost of the roving security guard for the common areas, it is reasonable to infer that the provision of security services nevertheless exacted a burden on Peppy because it increased Peppy’s rental rates and therefore affected the marketability of its leases. When we balance the burden of providing security against the low level of foreseeability of an armed robbery, the balance tips in favor of the conclusion that Peppy did not owe a duty under the circumstances of this case.
In Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, the court rejected the notion that a business proprietor who chooses to have a security program, including the provision of a roving security guard, has necessarily assumed a general duty to protect invitees from third party crime. (Id. at p. 249.) Rather, pursuant to the “negligent undertaking doctrine,” a defendant’s voluntary undertaking to provide security services “will support the finding of a duty to another only if (a) the defendant’s action increased the risk of harm to another, or (b) the other person reasonably relied upon the undertaking to his or her detriment.” (Id. at pp. 248–249, 250.)
The record does not support the application of the negligent undertaking doctrine because nothing done by Peppy or QSS increased the risk of harm to Ohannessian and Ohannessian did not rely upon the security services that were provided to his detriment. Indeed, Ohannessian was dissatisfied with the security services provided by Peppy and QSS and entered into a side agreement with the individual guard to pay him in exchange for the guards making a stop at the jewelry store on his morning patrol. It was undisputed that this side agreement was not done with QSS’s permission and was outside the scope of the guards employment with QSS. Under these circumstances, Ohannessian did not rely upon the security services provided by Peppy and QSS to his detriment, nor did the actions of Peppy or QSS increase the risk of harm to Ohannessian.
Ohannessian contends that QSS owed him a duty to secure the areas under its control against foreseeable criminal acts of others because “a guard company has a special relationship with the businesses that it is to protect.” If Ohannessian’s assertion of a “special relationship” with QSS is intended to invoke the “negligent undertaking doctrine,” then we reject such assertion for the reasons set out above. We also reject Ohannessian’s suggestion that QSS owes him a greater duty than that owed by Peppy. “A security company hired to protect business premises owes no greater duty toward the patrons of that business than is owed by the business owner under relevant principles of premises liability law.” (Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 247 [female customer of restaurant sexually assaulted by men parked in car near premises].)
Three cases cited by Ohannessian are distinguishable and thus do not support imposition of a duty on QSS. Two cases involve situations where a security guard is charged with failing to prevent an attack on a business patron where the threat or attack occurred in the guards presence. That is not our situation. (See Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193 [fast food restaurant patron was attacked by person wielding baseball bat in presence of security guards, who made “verbal attempts” to dissuade the assailant]; Trujillo v. G.A. Enterprises, Inc. (1995) 36 Cal.App.4th 1105 [fast food restaurant patron was threatened by group of youths in presence of security guard, who did not extricate patron from the situation, tell the youths to leave, or summon police].)
The third case is also of no avail to Ohannessian. In Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, a summary judgment in favor of a security company was reversed pursuant to the negligent undertaking doctrine. There, a convenience store cashier was assaulted by a woman patron at a time when a security guard hired by the store owner was not present. The security company did not claim that there was a good reason why its guard was not on the premises and the court determined that the duty to provide security was clearly breached, stating that the ultimate question was “whether there is evidence that [the security company’s] failure to furnish a security guard increased the risk of the harm that befell Mukthar. We conclude that the inference is reasonable that the woman would not have hit him, had a guard been standing beside Mukthar. This means that, under the negligent undertaking doctrine, it is a question of fact whether [the security company] is liable for Mukthar’s injuries.” (Id. at p. 293.) As stated, there is no evidence here to support application of the negligent undertaking doctrine, so Mukthar is inapposite.
Ohannessian argues that QSS is “vicariously liable for the unauthorized actions of its security guard within the scope of his employment, including his negligence in spending long periods of time at the coffee shop and agreeing to patrol by [the jewelry store] each morning and failing to do so.” But the guard was not acting with QSS’s knowledge or permission when he entered into the side agreement with Ohannessian, and at the time of the robbery at the jewelry store, the guard was patrolling the parking structure as part of his patrol duties for QSS. Thus, there is no evidence that, at the time of the robbery and shooting, the guard was engaging in any “unauthorized actions.”
Further, no authority is cited to support the proposition that QSS would be vicariously liable for the guard’s alleged breach of a side agreement which was entered into without QSS’s knowledge or permission and outside the course and scope of the guard’s employment with QSS. Ohannessian misplaces reliance on Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, in which the court held that the conduct of a deputy sheriff in sexually harassing other deputy sheriffs working at a county jail was not within the course and scope of his employment (and the county was not vicariously liable therefore), because the deputy’s actions were in direct violation of the county’s policy prohibiting sexual harassment, the employee’s conduct did not serve the employer either directly or indirectly, and the risk of such conduct was not typical of, or broadly incidental to, the enterprise of the employer. (Id. at pp. 1007–1009.) Farmers Ins. Group does not establish that QSS would be vicariously liable for the alleged conduct of its guard.
For all of the foregoing reasons, summary judgment was properly granted in favor of both Peppy and QSS on the ground that they owed no duty to provide roving, visible, 24-hour security guard service.
B. Lack of Causation
The summary judgment can also be upheld on the ground that, assuming a duty was breached by Peppy or QSS, the alleged breach of duty was not a cause of the harm to Ohannessian.
“To establish the element of causation, it must be shown that the defendant’s act or omission was a substantial factor in bringing about the injury.” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752.) If a defendant shows, “through the evidence adduced in the case, that the plaintiff cannot reasonably expect to establish a prima facie case of causation, and that a nonsuit in the defendant’s favor would be inevitable, then ‘the trial court was well justified in awarding summary judgment to avoid a useless trial.’ [Citation.] [¶] Where there is evidence that the harm could have occurred even in the absence of the defendant’s negligence, ‘proof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence . . . .’ Citation.” Ibid. Where the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Ibid.
Viewing the evidence most favorably to Ohannessian, we conclude that he is unable to show that it is more probable than not that a visible, roving 24-hour security guard would have prevented the robbery. A roving guard can be in only one place at a time. We can infer from the evidence in this record that the robber waited until the guard was out of sight of the jewelry store before entering the store. Ohannessian maintains that Peppy often used the guard to run errands off the premises and did not provide 24-hour roving patrols. But whether the guard was patrolling the parking structure for 10 minutes at the time of the robbery, as he declared, or whether he was running errands or on a coffee break, it is mere speculation and conjecture that any negligence was a substantial factor in causing Ohannessian’s injury. Regardless of whether the guard was properly performing his duties, it is more likely than not that the robber would have waited until the guard was out of sight before entering the jewelry store. Accordingly, summary judgment was properly granted on the ground of lack of causation.
C. Denial of Request for Continuance of the Hearing on QSS’s Motion
Ohannessian contends that the court should have granted him a continuance of the hearing on QSS’s summary judgment motion to take Ranasinghe’s deposition pursuant to the mandatory provision of Code of Civil Procedure section 437c, subdivision (h) (section 437c(h)) or pursuant to the court’s reasonable exercise of discretion.
Section 437c(h) provides in pertinent part: “If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. . . .”
Section 437c(h) “cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715–716.) Thus, a declaration in support of a request for a continuance under section 437c(h) must show (1) that the facts sought are essential to oppose the motion, (2) that there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).) Acknowledging that there is a difference of opinion among the Courts of Appeal as to whether the lack of diligence in completing discovery is an appropriate ground to deny a continuance under section 437c(h), the court in Cooksey agreed with the majority of courts in holding that the lack of diligence in completing discovery may be a factor justifying the refusal to grant a continuance under the statute, even though the statute does not expressly mention diligence. (Cooksey, at pp. 256–257.)
When no affidavit is submitted in support of a request for a continuance, or when the affidavit fails to make the necessary showing under section 437c(h), a continuance is not mandatory, but within the discretion of the trial court. (Cooksey, supra, 123 Cal.App.4th at p. 254.)
Here, the conclusory declaration in support of the request for a continuance failed to meet the statutory requirements that the declaration set out the specific facts to be sought, how the facts are related to the issues raised by the summary judgment motion, and the specific reason why the facts could not then be presented. The trial court properly concluded that Ohannessian was not entitled to a mandatory continuance pursuant to section 437c(h), apart from the factor of diligence in completing discovery.
Ohannessian also fails to establish that the trial court abused its discretion in denying his request for a continuance. The trial court expressly found a lack of diligence in completing discovery, and this finding is supported by substantial evidence, given the availability of Ranasinghe for deposition for at least a year before he moved out of state. Such lack of diligence is a proper ground for denying a request for a continuance of a summary judgment motion. (Cooksey, supra, 123 Cal.App.4th at pp. 255–256.)
D. Peppy’s Request for Attorney Fees on Appeal
Peppy seeks attorney fees incurred on this appeal pursuant to the lease provision providing as follows: “If Tenant or Landlord shall bring any action for any relief against the other, declaratory or otherwise, arising out of or under this Lease, including any suit by Landlord for the recovery of rent or possession of the Premises, the losing party shall pay the successful party a reasonable sum for attorneys’ fees in such suit and such attorneys’ fees shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to judgment.”
As no extrinsic evidence is presented to interpret the attorney fee provision of the lease, we determine de novo, under ordinary rules of contract interpretation, whether the contractual provision entitles Peppy to attorney fees. (Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (Gil).)
Relying principally on Thompson v. Miller (2003) 112 Cal.App.4th 327, Peppy argues that the instant attorney fee clause is broad enough to encompass fees incurred in a tort action and Peppy is thus entitled to attorney fees on appeal in this tort action. But Thompson does not stand for such a broad proposition. In Thompson, an attorney fee provision applicable to “‘any dispute under this Agreement’” was held to be broad enough to include the successful assertion of a contractual defense to causes of action for fraud and breach of fiduciary duty. (Id. at pp. 333, 335–337.) We infer that Peppy relies on Thompson because Peppy argues that the lease contains an exculpatory clause exempting Peppy from the type of liability Ohannessian seeks to impose on it. Thus, Peppy is apparently relying upon the lease provision in its defense.
In this case, the lease authorizes attorney fees to the prevailing party when one of the parties brings “any action . . . arising out of or under this Lease.” The language is not broad enough to include the assertion of a contractual defense because “the assertion of a defense does not constitute the bringing of an action to accomplish that goal.” (Gil, supra, 121 Cal.App.4th at p. 744.)
And under the “ejusdem generics” principle of contract construction whereby general words are construed to embrace only things similar to the enumerated or specific terms (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1045–1046), the lease’s enumeration of suits for the “recovery of rent or possession of the Premises” indicates that the language “arising out of or under this Lease” is not intended to embrace tort actions arising under the common law. The instant negligence and premises liability claims arise under common law principles and not out of or under the lease. Peppy is thus not entitled to attorney fees incurred on appeal.
Our conclusion is supported by the reasoning in Loube v. Loube (1998) 64 Cal.App.4th 421, a legal malpractice action, which addressed the question of whether an action for professional negligence is an action “‘to enforce the terms of this Agreement,’” a retainer agreement which adopted the language of Civil Code section 1717. (Loube, at p. 429.) The court recognized that without a contractual relationship, no professional duties would have existed and that professional negligence is both a tort and breach of contract. Nonetheless, the court concluded that attorney fees were not recoverable because “although the parties had a contractual relationship, and appellant’s claim for legal negligence arose from the relationship between them, which relationship was founded on a contract, the cause of action sounded in tort and was no more ‘on the contract’ than a claim for breach of fiduciary duty or for fraud involving a contract.” (Id. at p. 430.)
For the foregoing reasons, we deny Peppy’s request for attorney fees on appeal.
DISPOSITION
The judgment is affirmed. Peppy LLC’s request for attorney fees on appeal is denied. Peppy LLC and Quality Security Services, Inc., are entitled to their costs on appeal.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.