Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski, Jr., Judge. (Retired judge of the former Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. SCV117436
Law Offices of Manuel Lopez and Manuel Lopez for Plaintiff and Appellant.
Mark Schreiber and Rosaline Ayoub for Defendant and Respondent County Wide Security & Training, Inc.
Gray Duffy, Gary S. Gray and Kevin M. Cruz for Defendant and Respondent FC & EC Incorporated.
OPINION
Gaut, J.
1. Introduction
Plaintiff Reynaldo Sanchez was attacked by unknown assailants while he was on the premises of the El Castillo nightclub. He sued the nightclub owner, FC & EC Incorporated doing business as El Castillo 2 (El Castillo), and the security company, County Wide Security & Training Services, Inc., a California corporation (County Wide), for negligence. Plaintiff appeals after the trial court granted defendants’ separate motions for summary judgment. Based on our independent review, we determine there are no disputed material facts and affirm the judgment against plaintiff.
2. Standard of Review
The standard of review is well known: “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
Furthermore, “we independently examine the record to determine whether there exist triable issues of fact warranting reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) 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. (Ibid.) ‘We have recently observed that . . . amendments to Code of Civil Procedure section 437c . . . place the initial burden on the defendant moving for summary judgment and shift it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action.’ (Wiener, supra, 32 Cal.4th at p. 1142.)
“Accordingly, in this matter we must determine whether defendant has shown that plaintiff has not established a prima facie case of negligence. In making that assessment on review of a grant of summary judgment for defendant, we view the evidence in the light most favorable to plaintiff as the losing party below. (Wiener, supra, 32 Cal.4th at p. 1142.)” (Morris v. De La Torre (2005) 36 Cal.4th 260, 264.)
The standard of review for evidentiary rulings is an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
3. Material Disputed and Undisputed Facts
It is undisputed that plaintiff was injured on July 26, 2003, when he was attacked on the El Castillo dance floor by six or seven men who may have been gang members.
Defendants’ summary judgment motions presented evidence that County Wide security guards were on duty at the El Castillo when plaintiff arrived with his brother, sister-in-law, and two cousins. Plaintiff was attacked on the dance floor. When a security guard, Angel Ramirez, realized plaintiff had been injured, he called 911 and requested paramedics. Plaintiff’s brother carried plaintiff outside the nightclub and placed him on the ground. Eventually, plaintiff’s brother and sister-in-law drove plaintiff to the hospital just as the police arrived.
In opposing defendants’ summary judgment motions, plaintiff tried to present evidence disputing the material facts involving the nature and adequacy of the security provided in the nightclub. Plaintiff submitted his own declaration stating that he knew of seven previous instances of violence at the El Castillo, meaning there should have been better security the night he was attacked. Plaintiff also submitted declarations by his brother, his sister-in-law, and his cousin, Antonio Medina, stating there were hundreds of patrons and only two security guards present and there should have been more security guards.
Plaintiff also asserted that the security employee, Ramirez, ordered plaintiff’s brother, to carry plaintiff out of the nightclub and that Ramirez did not call 911 and failed to render assistance to plaintiff.
The court sustained defendants’ objections to most of the evidence offered by plaintiff about the foreseeability of harm, the adequacy of security, and the 911 call. The court determined that defendants had a duty but that plaintiff had failed to establish causation. The court granted defendants’ summary judgment motions and entered judgment in their favor.
4. Analysis
The California Supreme Court recognizes a bar owner has a special duty to its patrons: “[R]estaurant proprietors have a special-relationship-based duty to undertake relatively simple measures such as providing ‘assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act.’ [Citations.] Similarly, a restaurant or bar proprietor also has a duty to warn patrons of known dangers (see Rest.2d Torts, § 344) and, in circumstances in which a warning alone is insufficient, has a duty to take other reasonable and appropriate measures to protect patrons or invitees from imminent or ‘ongoing’ criminal conduct. [Citation.] Such measures may include telephoning the police or 911 for assistance [citation], or protecting patrons or invitees from an imminent and known peril lurking in a parking lot by providing an escort by existing security personnel to a car in that parking lot. [Citation.] Moreover, . . . California decisions long have recognized, under the special relationship doctrine, that a proprietor who serves intoxicating drinks to customers for consumption on the premises must ‘exercis[e] reasonable care to protect his patrons from injury at the hands of fellow guests’ (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 518 (Saatzer)), and that such a duty “arises . . . when one or more of the following circumstances exists: (1) A tavern keeper allowed a person on the premises who has a known propensity for fighting; (2) the tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others; (3) the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others; (4) the tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper failed to provide a staff adequate to police the premises; [fn. omitted] and (6) the tavern keeper tolerated disorderly conditions [citations].” (Saatzer, supra, 122 Cal.App.3d at p. 518; see also Slawinski v. Mocettini (1963) 217 Cal.App.2d 192, 196, and authorities cited.)” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 241 (Delgado).)
In situations “in which a proprietor is legally obligated to provide guards to protect the safety of its patrons—the proprietor might be held vicariously liable for the ensuing negligence of its guard [citation], or for its own negligence in selecting, training, supervising, or retaining the guard.” (Delgado, supra, 36 Cal.4th at p. 240, fn. 21.) Additionally, the special-relationship-based duty to provide security guards depends upon the “‘heightened’ foreseeability of third party criminal activity on the premises . . . shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location.” (Id. at pp. 240, 244.) In considering whether plaintiff made such a showing, the Delgado court concluded, “Heightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents.” (Id. at p. 245.)
Defendants’ summary judgment motions established that they provided security guards at the El Castillo. There was no evidence of danger that could have been foreseen by defendants. Although the guards did not see the attack when it occurred, once plaintiff was injured, a guard tried to assist him by calling for emergency services. Defendants did not breach their duty to plaintiff or cause his injuries.
In order to oppose defendants’ motions successfully, plaintiff needed to make a competent showing of foreseeability of harm and the inadequacy of the security provided by defendants. Additionally, he needed to present evidence that defendants had not rendered assistance and plaintiff was injured by their failure to do so. Unfortunately, plaintiff’s submissions to the court were fatally deficient.
The only evidence of foreseeability offered by plaintiff were his incompetent assertions that he knew of seven previous incidents occurring at the El Castillo and the inadmissible hearsay evidence from plaintiff’s sister-in-law about a statement made by a police officer at the scene. The court did not abuse its discretion in excluding this inadmissible evidence. (Carnes v. Superior Court, supra, 126 Cal.App.4th at p. 694.)
Plaintiff also failed to establish causation. In his opening brief, he argues that, if there had been four or six security guards instead of two guards, the attack on plaintiff could have been prevented. But plaintiff offered no evidence on this issue other than the opinion of two witnesses, plaintiff’s brother and sister-in-law, who did not even see the attack. As discussed at length in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,774-777, rank speculation is not adequate evidence about what security measures could have prevented an incident.
Finally, even if it could be established that defendants failed to render aid to plaintiff, there is no evidence at all that defendants’ conduct after the attack caused or contributed to plaintiff’s injuries. Plaintiff’s only response on this point is that medical experts are too expensive to be used in pretrial proceedings.
5. Disposition
Based on the absence of competent, sufficient evidence of foreseeability and causation, the trial court properly granted summary judgment in favor of defendants on plaintiff’s claims for negligence. We affirm the judgment. Defendants, as the prevailing parties, shall recover their costs on appeal.
We concur: Hollenhorst, Acting P. J., Richli, J.