Opinion
B158180.
11-25-2003
GUSTAVO RIOS et al., Plaintiffs and Appellants, v. AMERICAN GOLF CORPORATION, Defendant and Respondent.
Leslie F. Nadasi for Plaintiffs and Appellants. Hancock Rothert & Bunshoft, Joseph P. Collins, Danielle L. Roshala and Matthew J. Vanis for Defendant and Respondent.
Gustavo Rios (Gustavo) and Debra Rios (Debra) appeal from a judgment entered following the grant of a motion for summary judgment in favor of respondent American Golf Corporation (AGC), doing business as Knollwood Country Club (Knollwood). We affirm the judgment.
For convenience, and not out of disrespect, the appellants will sometimes be referred to by their first names.
Any reference to Knollwood is simply to the physical facility.
BACKGROUND
On September 18, 1999, appellants attended a wedding reception at Knollwood. The bride, Monica Reyes, was Gustavos cousin. The reception consisted of a hosted bar, followed by dinner. At least one other non-related reception was being held on the premises at the same time. All told, there were somewhere between 250 and 300 people attending the various events at Knollwood.
Prior to dinner at the Reyes reception, approximately six young men in baggy pants and T-shirts were hanging around the bar. The six men were not invited guests of the Rios wedding, and looked like gang members. The six men were giving hard stares to the other men at the reception, and generally misbehaving. The bride approached one of the six men and asked that they not cause any trouble. The man said they would not.
After a buffet dinner, one of the six men got into an argument with a groomsman. The manager, Eric Prebula, asked the man and the other five to leave. Prebula then shut down the bar and called the police. The six men left the building, and were outside when the police arrived. The police told them to leave.
After an hour or so, Prebula re-opened the bar, on a cash basis. At about 10:30 p.m., appellants left the reception. Gustavo could not find either of the two valets who parked his car. He went out into the parking lot and observed that the same six men were harassing some of the people from the Reyes reception. One of the men brandished a machete and rushed at Gustavo, who turned and ran away. Debra yelled at Gustavo to "run hard."
Gustavo made it back inside the clubhouse, which Prebula had locked. Gustavo then noticed he had suffered a two-inch cut to one of his ankles, severing a tendon. Prebula called for the police and paramedics, who arrived after about 45 minutes.
Gustavo subsequently filed an action against AGC for negligence and premises liability. Debra joined in the complaint with causes of action for loss of consortium and negligent infliction of emotional distress (n.i.e.d.).
After discovery, AGC moved for summary judgment. Appellants filed opposition, including the declaration of a security expert, Robert Gardner. Gardner opined that AGC indiscriminately served drinks to minors due to being understaffed and lack of supervision by Prebula. Gardner was also critical of AGC for not having procedures in place to identify and monitor the conduct of unruly guests, particularly in the parking lot.
The motion for summary judgment was granted, leading to this appeal.
DISCUSSION
1. Standard of review
The grant of a motion for summary judgment is subject to de novo review on appeal. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) In such a review, we examine the record to determine if the moving party has proved that "[o]ne or more of the elements of the cause of action cannot be established . . . .", and the responding party has failed to rebut that proof. (Code Civ. Proc., § 437c, subds. (o), (p).) In doing so, the responding party may not rely on his or her pleadings to provide a triable issue of fact, but instead must supply credible evidence. Finally, the moving partys papers are strictly construed, and those of the responding party are liberally construed. Any doubts as to the propriety of granting the motion are resolved against the moving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
2. Summary judgment was properly granted as to the negligence and premises liability causes of action
As a general proposition, the duty of a premises owner to protect a guest from a criminal act is limited to situations where the criminal act can be reasonably anticipated. (Ann M. v. Pacific Plaza Shopping Center (1994) 6 Cal.4th 666, 676 (Ann M.); Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181, 1189 (Sharon P.).) The existence of duty is a question of law (Ann M., at p. 673), as is the issue of foreseeability. (Sharon P., at p. 1188.) Both of those cases involved sexual assaults in areas where other miscellaneous crimes had previously occurred. Nevertheless, our Supreme Court held that the rapes were not reasonably foreseeable under the factual circumstance of each case.
In Ann M., the plaintiff was an employee of a photo development store in a strip mall of approximately 25 tenants. The owner of the strip mall, Pacific Plaza, refused to pay for roving security patrols. The tenants association decided not to have roving security patrols, but instead hired a security company to drive by the mall three or four times a day. One morning just after Ann M. opened the photo store, a man forced his way in. At knifepoint, he raped her and robbed the store. Pacific Plaza had no record of any criminal activity at the mall prior to that event. The Supreme Court held that "under the facts of this case, the scope of any duty owed by Pacific Plaza to Ann. M. did not include providing security guards in the common areas." (Ann M., supra, 6 Cal.4th at p. 674.)
The deposition testimony of Ann M. was that an unidentified security guard at a neighboring facility described to her a prior non-sexual assault involving purse snatching, and of a man running around the mall, pulling down womens pants.
Sharon P. involved a woman who operated an accounting business. She parked in a structure owned and operated by the defendants. One morning at 11:00 a.m., she drove into the parking lot and parked in her assigned space. As she was getting out of her vehicle, a masked man came up behind her and at gunpoint forced her back into her car, where he sexually assaulted her. In the 10 previous years, no crimes involving assault had occurred in the parking structure. However, evidence was presented that areas of the structure smelled like urine; were dark and provided hiding spaces; and an installed security camera was not operational. The trial court granted the defendants motion for summary judgment. A divided Court of Appeal reversed the judgment on the basis that parking structures were inherently dangerous, and thus criminal assaults "were highly foreseeable as a matter of law." (Sharon P ., supra, 21 Cal.4th at p. 1187.) Our Supreme Court reversed the Court of Appeal, rejecting the concept that parking structures were per se inherently dangerous. The Supreme Court concluded that under the facts, there was no duty to provide security in the subject structure. (Sharon P ., at p. 1195.)
There had been seven bank robberies at a bank that was located at the opposite end of the parking structure.
Appellants cite Cantwell v. Peppermill (1994) 25 Cal.App.4th 1797 (Cantwell) for the proposition that a proprietor of a bar serving alcoholic beverages is "liable for `receiving or harboring guests of known violent or vicious propensities. [Citations.]" (Id. at p. 1801.) While we accept the concept espoused, the end result of Cantwell is not helpful to us in the present appeal. Cantwell involved an assault by one patron on another. The complaint alleged that for three years, there had been numerous assaults on the premises directly related to the sale of alcoholic beverages. A demurrer was sustained without leave to amend. The Court of Appeal therefore had before it only the complaint, the facts of which it was required to accept as true. Holding that the allegations could support a finding of liability, the Court of Appeal reversed with instructions to overrule the demurrer.
In response to appellants assertions of liability relative to the service of alcoholic beverages, AGC improperly cites Delgado v. Trax Bar & Grill (Trax) (2003) 109 Cal.App.4th 262, a case that had a petition for review pending at the time AGCs brief was filed. Trax involved a situation where Delgado and Jacob Joseph got into an argument inside a bar. Delgado left the bar, and Joseph followed him outside. Joseph called out to 12 to 15 gang members, who had been lying in wait, and who rushed Delgado and beat him up, with Joseph hitting him twice with a baseball bat. The evidence was that the bar had suffered its share of ordinary bar fights, inside and outside the premises, but none involved gangs. A jury awarded Delgado over $80,000. The Court of Appeal reversed, finding no duty because a gang attack was not foreseeable. On August 27, 2003, the Supreme Court granted review.
In the present matter, it is uncontested that there were no prior criminal acts at Knollwood. But, as appellants correctly argue, the occurrence of prior similar crimes is only one factor — albeit an important one — to weigh. Each case is to be considered in light of the totality of the circumstances, "including such factors as the nature, conditions and location of the premises." (Ann M., supra, 6 Cal.4th at p. 677.) In the main, the duty of care is reached by a weighing of the foreseeability of the criminal conduct as opposed to the burden of the proposed security measures. (Ann M., at p. 678; Sharon P., supra, 21 Cal.4th at pp. 1189, 1195.)
Appellants urge that under the facts, AGC, through its on-site employees, should have foreseen a danger to its guests. Appellants point out that the six men were uninvited, were dressed like gang members, gave challenging stares to male guests, were loud and abusive, and got into an argument with one of the groomsmen. Appellants assert that Prebula was drinking along with the other guests, and, instead of doing his job, was more interested in "hustling" Nena Garcia, one of the female guests.
It is undisputed, though, that Prebula did take action by asking the six men to leave, and by calling the police. As previously stated, the six men left the building. The police arrived and told the men to leave the premises.
Appellants also assert that Prebula should have informed the valets to advise him if the six men did indeed leave the premises or if they returned, so that Prebula could warn the guests and again call the police. They claim he did not satisfactorily take steps to supervise the premises because he had been drinking, and because he wanted to socialize with Ms. Garcia.
In their opening brief, appellants claim that in his deposition, Prebula testified that as the six men left, one of them threatened him. However, neither the whole nor any relevant part of that deposition has been made a part of the record on appeal. The only evidence before us from Prebula is a one-page declaration that makes no mention of any threats. Also in the record is an unsigned, undated handwritten document apparently prepared by the brides father. The document states Prebula told the father that he (Prebula) had been threatened by one of the men. It is appellants burden to provide an adequate record on appeal, and the failure to do so will result in the waiver of any issue to which the lack of a record applies. (Vo v. Los Virgenes Municipal Water Dist . (2000) 79 Cal.App.4th 440, 447-448.) Accordingly, we will not consider whether or not Prebula had been threatened. Even if we did, our conclusion would be the same. A vague threat to Prebula did not equate to the foreseeable consequence that the wedding guests were in jeopardy.
Further, appellants contend that the bartenders failed to check the identifications of the persons ordering drinks, and as a result, served alcohol to minors. Yet, there is nothing in the record that shows the six men were minors, or that serving alcohol played any part in this matter.
Finally, appellants argue that instead of warning Prebula or the wedding party, the valets ran and hid because of the return of the six men. But there is nothing in the record to support that conclusion. That portion of Gustavos deposition testimony in the appellate record is to the effect that when he went outside to retrieve his keys, the valets were not present, so he walked out into the parking lot. Thus, no facts were presented to support his conclusion that the valets had been frightened off. Further, no evidence was adduced by appellants to support an inference that the valets even had time to warn Prebula or anyone else that the six men had returned.
We conclude that under the circumstances, AGC acted reasonably by calling the police. Moreover, it was not reasonably foreseeable for AGC to suspect the six men would return to the parking lot. We conclude that AGC did not breach its duty of care to Gustavo.
3. Summary judgment was properly granted as to Debras causes of action for loss of consortium and n.i.e.d.
Inasmuch as we have affirmed the trial courts rulings as to Gustavos causes of action, it logically follows that Debras causes of action must fall for the same reasons expressed above. If no duty was breached as to Gustavo, the same holds true for Debra, whose claims are based on the injury suffered by her husband. Because of our ruling, there is no need to discuss AGCs contention that the n.i.e.d. cause of action is barred because Debra did not witness the injury to Gustavo.
DISPOSITION
The judgment is affirmed. AGC is awarded its costs on appeal.
We concur: BOREN P.J., DOI TODD, J.