Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 362627. Terry A. Green, Judge.
Law Offices of Richard A. Love, Richard A. Love, Beth A. Shenfeld and Kathleen M. Erskine for Plaintiffs and Appellants.
Bradley & Gmelich, Jonathan A. Ross and Arnold S. Levine for Defendants and Respondents Craig Realty Group Citadel, LLC, and Eureka Realty Partners, Inc.
Wesierski & Zurek and Thomas W. Ely for Defendant and Respondent World Kitchen, LLC.
ROTHSCHILD, J.
An off-duty deputy sheriff suffered injuries when she attempted to break up an assault on her friend at a shopping mall. The deputy and her friend, who was also injured, sued the owners of the mall and a store in the mall near the location of the assault. The trial court granted summary judgment to the store owner on the grounds it owed no duty to either plaintiff and, in any event, the “firefighter’s rule” barred recovery by the deputy. The court granted the mall owner’s motion for summary judgment as to the deputy under the “firefighter’s rule” but denied summary judgment as to the friend. The mall owner does not challenge that ruling. We affirm the judgment.
FACTS AND PROCEEDINGS BELOW
The relevant facts are undisputed.
The incident occurred while Darlene Olivarez and Cynthia Lopez were shopping at the Citadel Mall owned by defendant Craig Realty which also provides security for the mall. Olivarez, an off-duty deputy sheriff, was dressed in civilian clothes. As Olivarez waited in the checkout line in the Corningware store, owned by defendant World Kitchen, another shopper, Irene Rodriguez (Irene), pushed Olivarez and cut in front of her. Irene then shouted to Melyda Rodriguez (Melyda) to bring their shopping cart. While the people in line waited for Melyda to arrive, Olivarez asked the cashier if she could go ahead and pay for her items. Hearing this, Irene responded, “Shut the fuck up you fucking lesbian, you’ll have to wait.” When Melyda arrived with the shopping cart she also shoved Olivarez and said: “Move the fuck out of my way, bitch.” As they proceeded through checkout Irene and Melyda continued to hurl threats and insults at Olivarez in the sight and hearing of the assistant store manager and two cashiers. Upon completing their purchases Irene and Melyda left the store. On her way out, Irene told Olivarez, “I’m going to kick your ass.”
After Irene and Melyda left, Lopez joined Olivarez briefly in the checkout line and then walked out into the mall. As Lopez stood approximately three feet from the door of the Corningware store, Melyda tackled her from the side while Irene struck her on her head and face with a bag containing heavy ceramic mugs. Irene and Melyda were joined by two other individuals who pushed Lopez down on her back and held her down while Irene and Melyda continued to kick and punch her and strike her with the bag of mugs.
Olivarez, unaware of the assault on Lopez, was inside the store paying for her purchases when she heard a loud crash as if glass were breaking and the sound of people screaming. She ran out of the store and saw Lopez on the ground being kicked and punched by Irene and Melyda and the two others. Olivarez ran to where Lopez was being beaten and shouted, “Stop fighting. I’m a police officer.” The attackers then turned their aggression on Olivarez, striking her repeatedly on her head and body. Witnesses estimated the attack on Lopez and Olivarez lasted between two and six minutes. Eventually, Olivarez freed herself from the attack and pulled her badge and gun from her purse and announced again that she was a police officer and ordered the assailants to let Lopez go.
Security supervisor Luis Fernandez was on duty at the time of the assault. He received calls from two stores near the Corningware store advising him that a fight was in progress in front of the Corningware store. Fernandez dispatched two security guards to the store and called the local sheriff’s station. By the time the guards and the sheriff’s deputies arrived the fight had ended. The deputies arrested Irene and Melyda and their cohorts.
Olivarez and Lopez sued Craig Realty and World Kitchen for negligence and other torts. All of their causes of action except negligence were dismissed on demurrer and are not at issue on this appeal. The trial court granted Craig Realty’s motion for summary judgment as to Olivarez but not Lopez. The court granted World Kitchen’s motion as to both plaintiffs. Olivarez and Lopez filed timely appeals. Our review is de novo. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
DISCUSSION
I. DEFENDANTS’ AFFIRMATIVE DEFENSE UNDER THE FIREFIGHTER’S RULE
On a motion for summary judgment, “[a] defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown... that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2)). Craig Realty and World Kitchen claim that they are entitled to summary judgment on Olivarez’s negligence cause of action because the “firefighter’s rule” affords them a complete defense. We agree.
“In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.” (Knight v. Jewett, (1992) 3 Cal.4th 296, 309-310, fn. 5.)
In Hodges v. Yarian (1997) 53 Cal.App.4th 973, the court extended the firefighter’s rule to an off-duty deputy sheriff who suffered injuries when he shot and arrested a suspected burglar in the deputy’s own garage. The deputy sued the managers of his apartment building for failure to address certain security problems. However, because he was performing off-duty the same activity he performed on-duty, the court applied the firefighter’s rule to bar the deputy’s lawsuit. The court’s explanation of why and when the rule applies to an off-duty peace officer responds to the arguments raised by Olivarez in opposition to the rule’s application and we concur in the Hodges court’s reasoning. (Id. at pp. 980-985.)
Olivarez contends that she falls within an exception to the firefighter’s rule contained in Civil Code section 1714.9, subdivision (a)(1), which provides: “Notwithstanding statutory or decisional law to the contrary, any person is responsible... for any injury occasioned to [a peace officer] by the want of ordinary care or skill in the management of the person’s property... in any of the following situations: (1) Where the conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer....”
We reject Craig Realty’s claim that Olivarez should not be allowed to raise this contention for the first time on appeal. This rule does not apply to an issue about the application of a statute that requires no factual determination by the trial court.
Her contention fails. Leaving aside the question whether either defendant was negligent in “the management of [its] property,” for the exception in subdivision (a)(1) to apply the defendant must commit an act of negligence injuring a peace officer “after the person knows or should have known of the presence of the peace officer....” Based on the undisputed facts, no employee of the Corningware store knew that Olivarez was a peace officer while she was shopping in the store. Furthermore, no one inside the store testified to hearing Olivarez state that she was a peace officer or seeing her show her badge when she was outside the store trying to break up the assault on Lopez. As the proponent of the exception to the firefighter defense, Olivarez bore the burden of producing evidence raising a triable issue of fact to support that exception. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [If the defendant meets its burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense].) She failed to produce any such evidence.
Finally, Olivarez argues that she comes within the “independent cause” exception to the firefighter’s rule. For this exception to apply the plaintiff’s injuries must not have been caused by an act of negligence that prompted the plaintiff to be present at the time and place where the injuries were sustained. (Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 663.) In Kocan v. Garino (1980) 107 Cal.App.3d 291, for example, a police officer sued a property owner alleging that while he was in hot pursuit of a felony suspect he attempted to leap over the defendant’s fence but the fence was maintained in such a dilapidated and unsafe condition that it gave way causing him severe injury. The court held that the property owner could not escape liability under the firefighter’s rule because his negligence, if any, in maintaining the fence did not create the risk which caused the police officer’s presence on the property (pursuit of a felon). The officer’s presence was the result of “wholly independent factors” not involving the property owner. (Id. at p. 296.) Olivarez reasons that she is not subject to the firefighter’s rule because she was not summoned to the mall to respond to a situation caused by Craig Realty or Kitchen World just as the officer in Kocan was not present in the defendant’s back yard to inspect the condition of his fence.
We disagree with Craig Realty’s contention that Olivarez is raising this issue for the first time on appeal. In the trial court she asserted the firefighter’s rule did not bar her recovery for conduct independent of the conduct that necessitated the presence of a police officer.
We reject this argument. Olivarez may have been present at the mall for the purpose of shopping but the undisputed facts show that her injuries occurred while trying to rescue her friend Lopez from a violent assault. If Olivarez’s injuries were not caused by any acts of negligence on the part of Craig Realty and World Kitchen that prompted her to be present at the time and place of the assault then she has no ground for recovery from those defendants. But, if Olivarez’s injuries were caused by acts of negligence on the part of Craig Realty and World Kitchen that prompted her to be present at the time and place of the assault then her recovery is barred by the firefighter’s rule.
II. WORLD KITCHEN’S LIABILITY TO LOPEZ FOR NEGLIGENCE
Lopez maintains World Kitchen owed her a duty of care to protect her from an assault by Irene and Melyda. We disagree.
The evidence shows that Irene and Melyda assaulted Olivarez inside the Corningware store but Olivarez does not contend World Kitchen is liable for those assaults.
It is well settled that the owner of a business has a duty “to take affirmative action to control the wrongful acts of third persons which threaten invitees where the [owner] has reasonable cause to anticipate such acts....” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123.) Under the undisputed facts of this case, the employees of the Corningware store could not have reasonably foreseen the attack on Lopez. Lopez was not the person pushed, cursed or threatened by Irene and Melyda.
Because we conclude Kitchen World owed no duty to protect Lopez from attack, we need not decide whether such a duty would have extended to protection in the common area of the mall.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: MALLANO, P. J., CHANEY, J.