Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court No. VC043944 of Los Angeles County. Raul A. Sahagun, Judge.
Law Offices of Gary A. Dordick, Gary A. Dordick and David Azizi for Plaintiffs and Appellants.
Daniels, Fine, Israel, Schonbuch & Lebovits, Michael N. Schonbuch, David L. Weisberg, and Mark Israel for Defendants and Respondents.
BIGELOW, P. J.
INTRODUCTION
Epimenio Padilla, Ramon Oseguera, and Jose Maciel were shot outside of the El Rodeo Night Club in January 2004. Maciel, and Padilla’s and Oseguera’s survivors (collectively appellants), filed suit against the nightclub owner, the property owner that leased the land to the club, and the security guard service company that provided security guards to the club. The trial court granted summary judgment in favor of the property owner and the nightclub (collectively respondents). We affirm the judgments.
BACKGROUND
In 2004, Thee Aguila, Inc. (Thee Aguila) owned a property in Pico Rivera. Thee Aguila leased the property to Thee El Rodeo, Inc. (El Rodeo), which operated the El Rodeo nightclub on the property. El Rodeo hired contractor First Team Security (First Team) to provide security services, including security guards.
On January 20, 2004, Padilla, Oseguera, and Maciel visited the club. They went on a “hip-hop night, ” when the club played hip-hop music. First Team guards were generally aware that gang members sometimes patronized the club; the guards attempted to warn each other when gang members arrived and ensured that they left at the end of each evening. According to one First Team guard, hip-hop nights tended to attract patrons with more “energy” who were more likely to engage in fights than crowds on other nights. On hip-hop nights, sheriff’s deputies usually came to the club in their squad cars to make sure that patrons left the property, and also out of concern that there may be fights between patrons. However, on January 20, 2004, the officers cancelled at the last minute.
As Padilla, Oseguera, Maciel and their other friends were leaving the club at closing time, their group began exchanging gang names with another group of patrons. When the two groups entered the club parking lot, Luis Fernandez, a First Team security guard, heard raised voices and the calling out of gang names. Although there was no pushing or shoving, it appeared to Fernandez that the situation risked escalating into a physical altercation. He approached the crowd of between 15 and 30 people. No other guards were near him at that moment. Fernandez told the crowd he needed them to leave and added, “I don’t want the Sheriffs coming over and harassing anybody.”
The crowd began to disperse. Fernandez headed toward another large group of patrons in the parking lot. Some members of the crowd called out a few additional gang names, but Padilla, Oseguera, and Maciel turned away and began walking to their cars. However, one man went to his truck which had been retrieved by a valet and got a gun. Fernandez heard someone say: “Homie has a strap.” As Fernandez was calling other guards on his radio for assistance, he heard a gunshot. He turned and saw one man falling to the ground and another man wearing a black jacket and dark pants holding a gun. The shooter pointed the gun at the back of a patron’s head and shot, in what looked like a “point-blank execution.” Padilla and Oseguera were fatally shot. Maciel ran but was shot four times in the back. The gunman continued firing after Maciel was shot.
Appellants filed suit against respondents and First Team on general negligence and premises liability theories. All defendants filed motions for summary judgment. Thee Aguila asserted appellants could not establish that it owed them a duty, in part because the gunman’s actions were not sufficiently foreseeable. Thee Aguila also contended appellants could not establish that its actions caused their injuries, and that appellants could not demonstrate liability on its part because it was a non possessory landlord. El Rodeo similarly argued that appellants could not establish it owed them a duty because the incident was not foreseeable, and further that appellants could not demonstrate causation as a matter of law.
In opposition to respondents’ motions, appellants offered evidence that approximately one month before the incident, there was another shooting in the El Rodeo parking lot where one patron shot another in the back. A captain from the sheriff’s department, Irma Becerra, testified in a deposition that the department had received a large number of service calls relating to the club, although not all of the calls she referred to occurred prior to the January 2004 shooting, and not all concerned violence. Becerra testified about reports of girls being encouraged to disrobe, drug sales, and violence including assaults with deadly weapons. Appellants also offered evidence regarding hip-hop nights and the First Team guard’s opinion that fights were more likely on those nights. They further provided deposition testimony indicating that First Team’s policies included having two security guards at the front door at closing time. If guards heard “gang words, ” they were to send a special signal on their radios. In the event of an exchange of gang names, one or two guards were to escort one group out of the club and send an “all clear” signal when the group had left the premises. Appellants contended El Rodeo was vicariously liable for the First Team guards’ actions or omissions, or alternatively El Rodeo was directly liable under theories of negligent hiring or supervision.
Appellants offered the declaration of a security expert who opined that El Rodeo should have had a functioning security camera by the entrance; the club should have followed its dress code policy which would have prevented the shooting by not allowing gang members into the club; and the club did not adequately address the closing time problems of patrons congregating near the front entrance of the club. The expert further opined that the club could have adjusted its security procedures by having more staff available at the front entrance and “sufficient guards” in places where most patrons congregated after leaving the club.
With respect to Thee Aguila, appellants offered evidence that its principal, Henry Aguila, lived 10 minutes away from the club and visited the premises a few times each month. Appellants argued Thee Aguila knew of a history of violent and dangerous activities at El Rodeo. They further asserted El Rodeo had jeopardized the property’s conditional use permit, thus Thee Aguila could have terminated the lease or required that the club owners adopt additional security measures.
The trial court granted respondents’ summary judgment motions. This appeal followed.
DISCUSSION
I. Standard of Review and Evidentiary Objections
“A ‘party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant satisfies this burden by showing ‘ “one or more elements” of the “cause of action”... “cannot be established, ” or that “there is a complete defense” ’ to that cause of action. (Ibid.)” (Ericson v. Federal Express Corporation (2008) 162 Cal.App.4th 1291, 1299 (Ericson).)
When considering an appeal from a trial court order granting summary judgment, we “independently examine the record to determine whether there exist triable issues of fact warranting reinstatement of the action. [Citation.]” (Morris v. De La Torre (2005) 36 Cal.4th 260, 264 (Morris).) “[W]e view the evidence in the light most favorable to plaintiff as the losing party below.” (Id. at p. 265.) Further, we liberally construe appellants’ evidence and strictly construe respondents’ evidence, “in order to resolve any evidentiary doubts or ambiguities in [appellants’] favor.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) We consider all of the evidence in the moving and opposing papers except that to which objections have been sustained. (Ericson, supra, 162 Cal.App.4th at p. 1299.)
The trial court sustained several of respondents’ objections to appellants’ evidence. In a tentative opinion, the trial court sustained respondents’ objections to unauthenticated police records, newspaper articles, documents relating to the conditional use permit, and the declaration of appellants’ expert witness. The court subsequently adopted the tentative opinion as its final ruling. Although the trial court’s minute order reprinted all of the text of the tentative, it did not include the tentative order’s final page, which listed the trial court’s rulings on respondents’ evidentiary objections. Despite this inconsistency, we understand the trial court’s final order to include its previous rulings on the evidentiary objections. In their appellate briefing, appellants contend in a footnote that respondents waived their evidentiary objections by failing to secure rulings from the trial court. This is inaccurate, as demonstrated by the trial court’s orders, and the colloquy about the objections that took place at the beginning of the hearing on respondents’ summary judgment motions. Respondents specifically asked the court for a ruling on their objections and the court referred them to the tentative order which included its rulings. That the final judgments expressly eliminated a sentence stating that the court’s rulings were attached, including the rulings on the evidentiary objections, indicates only that the rulings were not attached, not that they were never made or were rejected.
On appeal, appellants merely state that “[m]ost of the objections were boilerplate and, in any case, should have been overruled. Plaintiffs will seek leave to file a supplemental brief should a relevant order be located.” Although respondents’ appendix includes the tentative order that provided the relevant rulings, appellants neither addressed the objections in their reply brief nor sought leave to file a supplemental brief. In the absence of any legal argument or citations to authority, appellants’ bare assertion that the objections should have been overruled is insufficient to preserve the issue for review on appeal. We therefore view the objections as properly sustained and do not consider the corresponding evidence in our review. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1113-1115.)
After the case was argued and submitted, appellants sought leave to file a letter regarding the trial court’s rulings on respondents’ evidentiary objections. We denied leave. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854.)
The objections that were sustained resulted in excluding police reports and crime information reports relating to the club (Exhibit 10), club conditional use permit records (Exhibit 11), newspaper articles about crime at the club (Exhibit 12), and the opinions of appellants’ security expert (Ramm Declaration).
II. Thee Aguila’s Motion for Summary Judgment
We conclude the trial court properly granted Thee Aguila’s motion for summary judgment.
“In order to prevail in an action based upon a defendant’s alleged negligence, a plaintiff must demonstrate that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of his or her injuries.” (Morris, supra, 36 Cal.4that p. 264.) In general, there is no duty to protect others from the conduct of third parties. (Id. at p. 269.) There are exceptions to this rule when a defendant has a “special relationship” with the plaintiff, such as the relationship between business proprietors and their tenants, patrons, or invitees. (Ibid.)
However, a non possessory landlord owes only a limited legal duty to persons who come onto the property he or she owns. As this court explained in Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612: “All landowners, including landlords, must use reasonable care to protect people who come onto their property. [Citations.] For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.... ‘Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’ ”
Respondents successfully showed that appellants could not establish Thee Aguila breached any duty it owed to appellants. (Wiener, supra, 32 Cal.4th at p. 1142.) It was undisputed that Thee Aguila was a non possessory landlord. Even liberally construing appellant’s evidence and strictly scrutinizing respondents’ evidence, there was no triable issue of material fact regarding whether Thee Aguila had actual knowledge of dangerous or violent activities at the El Rodeo club.
The only evidence offered that reflected Thee Aguila’s knowledge was the deposition testimony of its principal, Henry Aguila (Aguila). According to Aguila, he went to the property approximately two times each month. He showed up unannounced to see how the operation was running. Although Aguila sometimes went into the club, on other visits he drove around the perimeter of the property to ensure that no one was parking in the lots of neighboring businesses, loitering, or consuming alcohol outside of the club. Aguila never went to the club on a hip-hop night. The club owners did not supply him with incident reports about club happenings. Aguila never had any conversations with the sheriff’s department about the club in which he was told about gang violence or gang activity at the club.
Although Aguila periodically visited the club, his involvement was minimal and insufficient to imply that he had any detailed knowledge about the type of clientele the club drew on any particular night, the likelihood of violence at the club, or the security procedures the club owners had established with First Team. There was no testimony from any other person indicating Aguila had more knowledge of El Rodeo operations or activities than he claimed. One of the club owners testified in his deposition that Aguila never asked El Rodeo to keep records of any crimes or problems that occurred at the club. Aguila lived 10 minutes away from the property, but this evidence did not permit an inference that he knew what was happening at the club at times he was not visiting. Further, there was no evidence that other residents living a similar distance from the club knew of dangerous or criminal activities at the club. Aguila testified he had the right to cancel the lease if the El Rodeo tenants did anything to jeopardize the property’s conditional use permit. But there was no evidence that prior to the January 2004 incident, Aguila was aware that the El Rodeo tenants were engaging in-or allowing-any activities that in fact jeopardized the permit.
The only evidence that residents living near the club had any knowledge of club activities was that residents from the community near the club complained about club patrons drinking or urinating in their parking lot. This evidence did not support an inference that Aguila, because he lived 10 minutes away from the club, had actual knowledge of dangerous criminal activities occurring at the club.
The trial court sustained respondents’ objections to documents appellants offered that reflected various proceedings relating to the conditional use permit. Even had these documents not been excluded, they do not help appellants’ case because they reflect that an action to revoke the permit did not take place until August 2004, well after the incident at issue in this case occurred. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371 (Chee).)
Appellants’ assertion that it would be sufficient for a jury to find Aguila “should have known” of a dangerous condition at El Rodeo is incorrect. As explained in Donchin v. Guerrero (1995) 34 Cal.App.4th 1832 (Donchin), upon which appellants rely, when proving a landlord’s actual knowledge by circumstantial evidence only certain inferences are permitted. “ ‘[O]nly where the circumstances are such that the defendant “must have known” and not “should have known” will an inference of actual knowledge be permitted.’ [Citations.]” (Id. at p. 1839.) There was no evidence suggesting Aguila “must have known” about dangerous criminal or violent activity at El Rodeo, and evidence that he merely “should have known” is not enough to create an inference of actual knowledge. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163, 164; Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 157-158.)
Finally, appellants contend that because the evidence of Aguila’s knowledge came from his own testimony, a jury could disbelieve him, therefore summary judgment was inappropriate. Appellants rely on Donchin to support this contention, but a review of the case demonstrates it does not help appellants’ argument. Donchin concerned a residential landlord whose tenant owned dogs with vicious propensities. When served with a complaint and summons, the landlord claimed he never knew his tenant had dogs and he had never authorized the tenant to have a dog. However, the landlord later admitted he knew of the dogs’ existence, but denied any knowledge that the dogs were vicious. (Donchin, supra, 34 Cal.App.4th at p. 1835.) The plaintiff provided evidence that a neighbor and a UPS employee knew of the dogs’ vicious characteristics. The plaintiff also offered the declaration of an animal behavior expert who opined that if the dogs were vicious toward the neighbor and UPS employee, they were probably also vicious toward the landlord when he made his regular visits to the residence. (Id. at p. 1836.) It was within this evidentiary context that the court in Donchin found the plaintiff raised a triable issue of fact as to the landlord’s actual knowledge of the dogs’ vicious propensities. The landlord made a false exculpatory statement which would allow a jury to infer a guilty conscience, and there was additional affirmative evidence suggesting the landlord must have known about the dogs’ viciousness. (Id. at pp. 1841, 1845.)
In this case, there is no evidence that Aguila made false exculpatory statements. While appellants argue a jury could choose not to believe his testimony, there was no evidence contradicting Aguila’s statements that he was unaware of any dangerous conditions at El Rodeo. Nor was there affirmative evidence suggesting Aguila must have known about the danger of life-threatening criminal or violent activity at El Rodeo.
In addition, “[s]ummary adjudication ‘may not be denied on grounds of credibility.’ (Code Civ. Proc., § 437c, subd. (e).) ‘If the moving party’s evidence is not controverted, the court must ordinarily accept it as true for purposes of the [summary judgment] motion. In other words, the judge generally lacks discretion to deny the motion and send the case to trial simply to allow the opposing party to cross-examine the affiants or otherwise test their credibility.’ [Citation.] The... declarations may well be self-serving, ‘but where (as here) [they are] uncontradicted, case law establishes that such a showing can provide the basis for summary judgment.’ [Citation.]” (Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636.) While “the court has discretion to deny summary [judgment] where a witness’s own statement is the only evidence of his or her state of mind... the converse is also true, and a court has the discretion to grant a motion for summary [judgment] under such circumstances as well.’ [Citation.]” (Ibid.; Chee, supra, 143 Cal.App.4th at pp. 1370-1371 .)
Here, where Aguila’s declaration and deposition testimony were uncontroverted, and there was no circumstantial evidence from which a fact finder could reasonably infer that Aguila must have known of dangerous conditions at El Rodeo, the trial court was not required to deny summary judgment simply because Aguila’s credibility could theoretically be challenged at trial. (Chee, supra, 143 Cal.App.4th at pp. 1370-1371.)
The trial court properly granted Thee Aguila’s summary judgment motion.
III. El Rodeo’s Motion for Summary Judgment
A. There Was No Triable Issue of Material Fact as to Causation
To establish liability on a negligence theory, “plaintiffs must show that defendants owed them a legal duty, that defendants breached that duty, and that the breach proximately caused their injuries.” (Wiener, supra, 32 Cal.4th at p. 1145.) On causation, a plaintiff must “prove more than abstract negligence unconnected to the injury.” (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916 (Noble).) Instead, to establish actual or legal causation, a plaintiff must demonstrate that the defendant’s act or omission was a substantial factor in bringing about the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774-775 (Saelzler).)
Causation must be established by non speculative evidence. Thus, in cases in which the plaintiff asserts the defendant’s failure to provide adequate security measures caused the plaintiff to suffer injuries at the hand of a third party criminal, courts have held the plaintiff could not establish causation when the plaintiff did not know how an unidentified attacker gained access to the property, or when the plaintiff could not prove it was more probable than not that additional security measures would have prevented the attack. (Saelzler, supra, 25 Cal.4th at pp. 776, 778; Noble, supra, 168 Cal.App.3d at pp. 918-919; Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 515-517.)
In this case, even assuming appellants could establish El Rodeo had a duty to them, and that duty was breached, respondents showed appellants could not establish causation. Appellants did not offer non speculative evidence to raise a triable issue of fact on this element of their claims. Appellants argued certain measures El Rodeo could have taken would have prevented the shooting: additional guards, stricter adherence to the First Team procedures for dealing with groups exchanging gang words, actions to keep patrons from loitering in the parking lot, a working security camera on the club premises, or enforcement of the club’s dress code. However, there was no evidence to suggest it was more probable than not that any of these measures would have prevented the shooting. Even though Fernandez alone approached the two gang groups in the parking lot, the groups were actually complying with his request that they disperse when a lone patron appeared to leave, then returned to shoot. There was no evidence that the presence of additional guards would have made a difference, or even that had Fernandez continued watching the groups as they were leaving, the shooting would not have occurred. After all, Fernandez was still in the immediate vicinity when the shooter began firing his weapon. And the First Team procedures were intended to respond to altercations between groups or the exchange of gang hostilities, not execution-style shootings by a single actor who has split off from a larger group. There was no non speculative evidence that had First Team followed its own procedures more closely the shooting could have been prevented.
Similarly, although the club did not have a working security camera on the night of the incident, the shooter fired his weapon in full view of at least one guard, at least one valet, and numerous other eyewitnesses. Fernandez had also warned the crowd gathered-which presumably included the shooter-that law enforcement would become involved if the crowd did not disperse. The shooter did not attempt to avoid being seen, nor was he dissuaded by the threat of the presence of law enforcement. One of the club owners agreed generally in deposition testimony that security cameras may deter criminal activities, but nothing in the record indicates that the absence of a security camera was a substantial factor in bringing about the shooting. (Castaneda v. Olsher (2007)41 Cal.4th 1205, 1223 [where occupants of mobile home were “willing to engage in an armed confrontation with rival gang members where lighting allowed their weapon to be seen and themselves to be recognized, plaintiff simply has not shown that the absence of brighter lights was likely a substantial factor in producing the confrontation and ensuing gunshot”].)
Likewise, there was no evidence to suggest it was more probable than not that had the club enforced its dress code, the shooting would not have occurred. Fernandez testified that the shooter was wearing a black jacket and dark pants-not the attire he associated with gang members (baggy clothes, white shirts, jerseys, chains), or the attire one of the club owners testified was prohibited by the dress code (baggy pants, tattoos, gang attire). Although some of the patrons who eventually began to call out gang names may have been denied admission to the club had the dress code been enforced, there was no evidence to suggest that the actual shooter would have been denied entry. The evidence presented did not create a triable issue that lack of enforcement of the dress code was a substantial factor in causing the shooting.
Appellants relied heavily on the opinions of their expert witness to raise a triable issue of fact as to causation. However, as explained above, the trial court sustained respondents’ objections to the declarations and appellants have not preserved any objection to the trial court’s ruling for review on appeal.
Further, even had the trial court overruled respondents’ objections to the expert declarations, we would conclude the expert’s opinion was not sufficient to raise a triable issue of fact. The expert’s conclusions were speculative and general, such as the opinion that a security camera would have provided a deterrent effect, and that enforcement of the dress code, which was intended to “discourage” gang problems, would have rendered it more likely than not that the shooting would not have occurred. Although the expert opined that several additional security measures could or should have been taken-i.e., adequately addressing the problem of patrons congregating near the front entrance at closing time, requiring that First Security keep the club owners informed about criminal activity on the premises, adjusting placement of security guards-he did not express an opinion as to whether such measures would have prevented the execution-style shooting in this case. In the first version of the declaration, the expert opined that had First Team followed its own procedures it was more likely than not the shooting would not have occurred because the crowds, including the victims, would not have been near the front entrance of the club, or the guards could have “taken action” against the shooter before he shot had they been watching the two groups. For the reasons explained above and set forth in authorities such as Saelzler, supra, 25 Cal.4th at pages 775 and 781, appellants’ expert’s conclusions did not raise a triable issue of material fact as to causation. (See also Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 435; Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487-489; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 435-436.)
At oral argument, appellants’ counsel suggested the security expert opined the club’s desired ratio of one guard to 50 patrons was insufficient. We are unable to find this opinion in the record. In recounting the facts of the incident as he learned them from reviewing the materials provided to him, the expert stated: “[A First Team employee] testified that [El Rodeo] owner Fragoso implemented the guideline that there should be a ratio of one guard to every 50 patrons and therefore he adjusted the number of guards to reflect this ratio as people would leave at closing; sending guards into the parking areas to monitor and encourage persons to leave the premises and to deter fights.” The expert did not subsequently criticize this ratio or opine that it was insufficient; at most he critiqued the placement of guards and the failure to have more than one guard stationed in the front area of the club at closing time. There was evidence in the record that there were 300 or fewer people at the club on the night of the incident, and the ratio of guards to patrons was at least 1 to 50. Fernandez testified that the group exchanging gang names in the parking lot was between 15 and 30 people.
As our high court has acknowledged, “assaults and other crimes can occur despite the maintenance of the highest level of security. [Citations.]” (Saelzler, supra, 25 Cal.4th at p. 777.) Appellants cannot defeat summary judgment simply by asserting that El Rodeo could have done more to enhance security at the club. Instead, it was necessary for appellants to raise a triable issue of fact with evidence that El Rodeo’s “act or omission was a ‘substantial factor’ in bringing about the injury. [Citations.] In other words, [appellants] must show some substantial link or nexus between omission and injury.” (Id. at p. 778.) No such evidence was presented in this case sufficient to create a triable issue. A mere possibility of causation is not enough. Instead, “ ‘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.]” (Id. at pp. 775-776, italics added by Saelzler.)
In light of this conclusion, we need not consider whether any duty El Rodeo had to its patrons was non delegable.
B. Negligent Hiring or Supervision Claims
The record did not include evidence that raised a triable issue of fact on either a negligent hiring or negligent supervision claim. While California law recognizes that an employer may be liable to a third party for negligently hiring or supervising an unfit or incompetent employee, “[l]iability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [Citation.]” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Further, “there can be no liability for negligent supervision ‘in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.’ [Citation.]” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395.)
In this case, there was no evidence that El Rodeo knew or should have known that hiring First Security posed a particular risk or hazard to El Rodeo patrons. In fact, there was no evidence about El Rodeo’s hiring process, or even allegations about what El Rodeo should have done differently in hiring First Security. Moreover, there was no evidence that El Rodeo knew or should have known that First Security or any of its guards were unfit to provide security services to the club. There was no evidence or allegation that First Security acted incompetently prior to the incident at issue.
“ ‘One who employs another to act for him is not liable... merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand.... [¶] Liability results... not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment....’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140 (Phillips), quoting Rest.2d Agency, § 213, com. d, p. 459; Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4th 748, 783.)
Further, appellants’ negligent hiring and supervision claims were based largely on the assertions we have discussed above with respect to causation, such as the failure to have different placement of the guards, or the failure to have First Team inform the club owners about criminal activity at the club. As explained above, even if El Rodeo knew or should have known that First Team was incompetent, appellants’ claims for negligent hiring or supervision would fail since there was no triable issue of material fact that the alleged failures were a substantial factor in causing the shooting. (Phillips, supra, 172 Cal.App.4th at p. 1140 [liability for negligent selection, training, or supervision requires causal connection between the principal’s negligence, the actor’s work, and the harm suffered by the third party].)
Thus, the negligent hiring and supervision claims could not survive summary judgment.
On appeal, appellants argue for the first time that El Rodeo may be held vicariously liable for the actions of First Security guards due to a special employment relationship. In other words, appellants contend the relationship was that of employer and employee, rather than employer and independent contractor. This theory, which requires a fact-based analysis, was not raised below and is therefore forfeited. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818, fn. 36; Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 498, fn. 9.)
DISPOSITION
The trial court’s judgments are affirmed. Respondents are to recover their costs on appeal.
We concur: RUBIN, J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.